Sentencing Law and Policy

Fascinating Florida re-entry report

In February 2005 through this executive order, Florida Governor Jeb Bush created an Ex-Offender Taskforce "to help improve the effectiveness of the State of Florida in facilitating the re-entry of ex-offenders into their communities so as to reduce the incidence of recidivism."  This Taskforce has recently released this final report, which has 15 detailed recommendations designed to address reentry issues.

The report is a very interesting read, and the bulk of the recommendations come under the heading "The Prison Experience: Successful Reentry Must Start at Prison Entry." Here are the four highest priorities identified by the Taskforce under this heading:

1. The [Florida Department of Corrections (FDC)] mission statement should be revised to explicitly address successful reentry.  To assess performance in achieving the goal of successful reentry, performance measures should be adopted for FDC, its facilities, and wardens and staff.

2.  A minimum of six more facilities should be transformed into faith and character-based facilities with three completed by December 31, 2007 and three more by December 31, 2008....

6.  FDC should improve and expand job training through the maximization of third-party resources....

9.  FDC should begin pre-release planning with inmates starting on their first day of incarceration and develop individualized reentry plan for each inmates....

Should Weldon Angelos get a rare commutation?

The Washington Post today has this notable editorial entitled "Commute This Sentence: A clemency case not even President Bush can ignore -- or can he?"  Here are highlights:

The Supreme Court this week declined to review the case of Weldon Angelos, leaving in place his obscene sentence of 55 years in prison for small-time marijuana and gun charges.  The high court's move is no surprise; the justices have tended to uphold draconian sentences against constitutional challenge.  But it confronts President Bush with a question he will have to address: Is there any sentence so unfair that he would exert himself to correct it?

So far, Mr. Bush hasn't found one.  He has commuted only two sentences, both of inmates who were about to be released anyway.  Mr. Angelos, by contrast, is a young man and a first-time offender who is now likely to spend the rest of his life in prison.  His crime?  He sold $350 in marijuana to a government informant three times -- and carried, but did not display, a gun on two of those occasions. Police found other guns and pot at his house.

The U.S. district judge who sentenced him in Utah, Paul G. Cassell, declared the mandatory sentence in this case "unjust, cruel, and even irrational."...  And in an extraordinary act, he explicitly called on Mr. Bush to use his clemency powers to offer what he as a judge could not: justice.  Judge Cassell recommended that Mr. Bush commute the sentence to 18 years, which he described as "the average sentence recommended by the jury that heard this case."

Mr. Bush put Judge Cassell on the bench....  His exceptional discomfort with this case -- and his passionate plea for presidential mercy -- ought to carry weight even with a president so disinclined to use the powers the Constitution gives him to remedy injustices.

With all due respect, I question whether Weldon Angelos ought to be the Washington Post's poster child in a call for President Bush to make better use of his clemency powers.  Though I view Angelos' sentence to be much longer than needed, there are thousands of other non-violent drug offenders in the federal system who are serving sentences much longer than necessary because of mandatory sentencing provisions.  (Consider, for example, the story of Clarence Aaron discussed in this recent commentary.)

Though I commend the Post for encouraging President Bush to make better use of his clemency powers, it ought to use the Angelos case as a springboard for a broader discussion of the problems of mandatory minimum sentencing provisions.

Some related posts on the Angelos case and the clemency power:

• Cert denied in Angelos mandatory minimum case
• Judge Cassell laments, but imposes, harsh mandatory sentence
• Amicus filing in Angelos mandatory minimum case
• Tenth Circuit affirms 55-year mandatory minimum sentence in Angelos
• Catching up with Weldon Angelos
• Maryland governor taking clemency responsibility seriously
• Troubling patterns in Bush's pardons
• Terrific article on the pardon power

Drug reform in the new Congress

The Drug War Chronicle has this interesting new piece entitled "Drug Reform and the Democratic Congress: What's Going to Happen?". Here is a snippet:

There is a whole long list of drug reform-related issues that the Democratically-controlled Congress can address, and hopes are high that after a dozen years of Republican rule on Capitol Hill, progress will come on at least some of them.  But will the Democratic Congress really turn out to be Santa Claus, bestowing gifts on a movement long out in the cold, or will it turn out more like the Grinch, offering up tantalizing glimpses of the goodies only to snatch them away?

Another notable Note on the Sixth Amendment's reach

In this recent post, I spotlighted a new Columbia Law Review Note exploring how Blakely might affect orders of restitution and forfeiture.  Today it's time to note a notable Note in the Yale Law Journal.  This Note is entitled "Sentencing Organizations After Booker" and is available at this link. Here is the abstract:

In United States v. Booker, the Supreme Court held that courts violate individuals’ right to a jury trial when they sentence individuals using judge-found facts in combination with mandatory sentencing guidelines.  The Supreme Court, however, has never decided exactly when organizations are entitled to a criminal jury.  Accordingly, Booker's full implications for the organizational sentencing guidelines are not immediately clear.  Nonetheless, a careful reading of the law suggests that organizations are entitled to a jury in at least most federal criminal cases and thus that Booker's logic should apply to the organizational guidelines.

Recapping the SCOTUS docket discussion

The ACSBlog has this helpful recap of some of the recent discussions of the SCOTUS docket, while Jonathan Soglin at Criminal Appeal sets out four more cert-worthy criminal justices issues in this post.  As detailed by the posts linked below, I really enjoy examining how the Supreme Court sets its agenda. 

Notably, the latest discussion has not yet zeroed in on the cert pool, which seems to have had a role in cert dynamics in the last decade.  There was talk around the time of Chief Justice Roberts' confirmation that try to tweak the cert process; I hope that the new docket debate might get that talk going again.

Some recent related posts:

• What SCOTUS should be doing
• Solving the SCOTUS docket mystery
• Additional SCOTUS docket dissection
• Time to take some more Blakely and Booker cases....
• New Justices content with their dip in the pool
• Roberts, the cert pool, and sentencing jurisprudence
• Problems with the SCOTUS docket
• More on Alito and the criminal docket

Eleventh Circuit balks about consideration of post-sentencing behavior

In a per curiam opinion, the Eleventh Circuit in US v. Lorenzo, No. 05-16119 (9th Cir. Dec. 8, 2006) (available here) suggests that the district court's consideration of post-sentencing behavior is never an appropriate consideration at a Booker resentencing.  Because Lorenzo is a short opinion dealing with a quirky (though perhaps quite common) re-sentencing situation, I do not want to read too much into its reversal of a district court's lenient sentence.  But the Eleventh Circuit's analysis hints that post-sentencing behavior is never a proper consideration, and I have a hard time squaring such a broad crude rule with the nuanced text of 3553(a).

The lethal mess in Ohio

A number of folks have noticed the mess that the obviously divided Sixth Circuit has been making of death penalty administration in recent years.  The latest lethal injection litigation developments have brought the issue to a new level of ugliness. 

As well covered by DPIC, Capital Defense Weekly and ODPI, earlier this week U.S. District Court Judge Gregory Frost in this fascinating ruling sharply criticized the lack of any clear guidance from the Sixth Circuit, lamenting a "morass of deadly ambiguity" on how to apply the law.  Here is a taste:

[T]his Court is now confronted with two different unreported decisions by two different [Sixth Circuit] appellate panels, both concerned with the same issues of law and both reaching wholly opposite, unexplained results....  This Court's inability to discern the appellate rationale for denying or granting a stay does not promote confidence in the system, does not promote consistency in court decisions, and does not promote the fundamental value of fairness that underlies any conception of justice.

Ninth Circuit discusses safety-valve after Booker

Though the Ninth Circuit won't be addressing reasonableness review until the Supreme Court does (story here), a panel today did speak to the application of the so-called safety-valve after Booker in US v. Cardenas-Juarez, No. 05-30250 (9th Cir. Dec. 8, 2006) (available here). Here is the key take-away:

We now hold that the safety valve statute, 18 U.S.C. § 3553(f), survives Booker to require district courts to impose sentences pursuant to the advisory Sentencing Guidelines. This is consistent with congressional intent both to provide relief for less serious offenders and to reduce sentencing disparity. When the statutory safety valve requirements of § 3553(f) are met, "district courts still 'must consult [the] Guidelines and take them into account when sentencing,' even though they now have the discretion to impose non-Guidelines sentences." United States v. Cantrell, 433 F.3d 1269, 1278 (9th Cir. 2006) (quoting Booker, 543 U.S. at 264).

Plead guilty or face lifetime solitary confinement?

Severe federal sentencing laws give federal prosecutors lots of bargaining leverage to get guilty pleas rather than to have to prove guilt at a trial.  But this story from Buffalo sent to me by a helpful reader provides a new and disturbing twist on prosecutorial efforts to coerce encourage a guilty plea:

Federal prosecutors have told James C. Kopp he will spend the rest of his life in solitary confinement, locked up 23 hours a day in the nation's most-secure prison, if he insists on a trial and is convicted on federal charges stemming from the October 1998 killing of Dr. Barnett A. Slepian. But if he pleads guilty instead, the prosecutors told Kopp in a recent meeting, they would see that he is sentenced to a medium-security federal prison.

Kopp, who is representing himself, disclosed the government's offer in a four-page affidavit he wrote from his cell in the Niagara County Jail and made available to The Buffalo News.  His court-appointed legal adviser, assistant federal public defender John F. Humann, confirmed Kopp's version of the offer....

Kopp already is destined to spend at least the next 25 years of his life in prison, after he was convicted in Erie County Court of Slepian's murder.  Now 52, Kopp would be in his 70s before he was even eligible for state parole and even then would be unlikely to be granted his freedom. Kopp faces an additional life sentence in federal prison if convicted of charges that, by his killing Slepian, he violated a federal law guaranteeing access to abortion clinics.

Additional SCOTUS docket dissection

At the Volokh Conspiracy, Orin Kerr has this intriguing post speculating about the Supreme Court's reluctance to resolve splits that have emerged after Booker.  Orin suggests the sentencing cert pattern "has more to do with the nature of 5-4 constitutional revolutions than with any new reluctance to take cases or any lack of interest in sentencing law."

I see wisdom in Orin's points, and it's surely true that "the Court will often take a while to work through the implications of its 5-4 revolutions."  That said, the modern SCOTUS sentencing story has some important additional nuances: 

• First, the recent "5-4 revolution" of sentence law already extends back 6+ years to the June 2000 Apprendi decision (and really one year earlier to the 1999 Jones ruling). 
• Second, the purported raison d'être of federal sentencing reform is to create uniform national sentencing rules; allowing a circuit split over federal guideline sentencing to fester after Booker would seem to undermine a chief goal of federal guideline sentencing.

Moreover, my broader point in this post was not simply to lobby for more sentencing cases on the SCOTUS docket.  Rather, I wanted simply to spotlight that, against the backdrop of massive growth in state and federal criminal justice systems and issues, reductions in the Supreme Court caseload is a deliberate choice, not an unavoidable reality.   (And, on this topic, Federal Defender Steve Sady has this extended discussion of "several areas that involve either huge numbers of cases, significant conflicts in the lower courts, or both, that need to be addressed as soon as possible.")

Some ugly realities of incarceration

Over at TalkLeft, Jerayln is doing a fine job spotlighting some recent developments and commentary about the sorry state of medical conditions in Americas prisons.  Here are her two recent posts:

• 7,000 a Year Die in U.S. Prisons (discussing this commentary)
• Mich. Prison System Held in Contempt of Court (discussing this news report)

Relatedly, CrimProf here reports on "a civil-rights investigation into the King County Jail in Seattle, focusing on sexual abuse of inmates and on allegations of inadequate suicide prevention and contagious-disease control."

Another shame(ful?) sentencing example

A helpful reader pointed me to another story about another shaming sentence.  Perhaps because I am drawn to shaming as an alternative to incarceration in the right cases, I read this AP story from Albany, Georgia as another example of the positive possibilities of sensible shame sentences:

A young woman sentenced to walk a downtown sidewalk wearing a sandwich board announcing her crime as a condition of her probation for burglary said the experience was humbling and humiliating, but definitely better than serving jail time.

"I understand the judge's reasoning,'' said Breanna Klewitz, 23, of her two-hour walk on a sidewalk in front of the Dougherty County Courthouse, wearing signs that read, "I AM A THIEF'' and "I STOLE WHAT YOU WORKED FOR.''  "If you do something wrong, you have to accept some responsibility,'' she said. "Sitting in a jail cell does provide anonymity.  I wish the world didn't have to know me by face and by name.  But I understand his reasoning."...

Chief Superior Court Judge Loren Gray sentenced Klewitz to five-years probation as a first offender for her role in a June burglary at a local fast-food restaurant, where she worked as an assistant manager....

Klewitz said she was amazed at the words of encouragement from passers-by during her two-hour walk on Wednesday. "They said, 'Hang in there,' 'We're praying for you,''' she said. "The only thing I could think of is, rather this than jail. It's definitely made me a better judge of character and who I hang out with.''

Gray said he wants people who steal to know that their crimes will be exposed. Sending defendants like Klewitz to jail for the weekend, allows them to escape public scrutiny and is a burden on taxpayers, he said.

Some recent posts on shaming sentences:

• What punishments really undermine human dignity?
• Shaming punishments and communitarianism
• More shame, shame on you
• Weekend reading on shaming punishments
• The state of shaming punishments (with lots of links)

For death penalty fans...

there are a lot of fascinating new developments being well covered at Capital Defense Weekly and Ohio Death Penalty Information and StandDown Texas Project.

Ninth Circuit decides to punt reasonableness en banc

In an order that I cannot yet find on-line, the Ninth Circuit has decided en banc to postpone its decision on reasonableness review in Zavala and Carty (lots of background here) until after the Supreme Court decides Claiborne and Rita (lots of background in this index).  Here is the text of the order I was sent via e-mail, which includes a notable footnote from Judge Kozinski:

We ordered rhrg en banc in these cases on 8/23/06, in order to settle the law of this circuit in light of US v. Booker, 543 US 220 (2005).  We heard oral argument and ordered the cases submitted on 10/6/06. Since then, the US Supreme Court has granted writs of certiorari in Claiborne v. US, 75 U.S.L.W. 3243, 3246 (U.S. Nov. 3, 2006) (No. 06-5618) and Rita v. US, 75 U.S.L.W. 3243, 3246 (U.S. Nov. 3, 2006) (No. 06-5754).

The issues in Claiborne are: 1) Was the district court's choice of below-Guidelines sentence reasonable? 2) In making that determination, is it consistent with Booker to require that a sentence which constitutes a substantial variance from the Guidelines be justified by extraordinary circumstances?

The issues in Rita are: 1) Was the district court's choice of within-Guidelines sentence reasonable? 2) In making that determination, is it consistent with Booker to accord a presumption of reasonableness to within-Guidelines sentences? 3) If so, can that presumption justify a sentence imposed without an explicit analysis by the district court of the 18 USC Section 3553(a) factors and any other factors that might justify a lesser sentence?

Given overlap of the issues raised, we vacate submission of Zavala and Carty pending the decisions by the Supreme Court in Claiborne and Rita.  Meanwhile, our 8/23/06 order remains in effect.  Accordingly, the panel opinions shall not be cited as precedent by or to this court or any district court in the circuit.

FN1: Judge Kozinski would plough forward to a decision and give the Supreme Court the benefit of our thinking, inspired by the exceptionally fine briefing and argument presented by the parties and most amici.

SCOTUS takes up three new criminal cases

Conveniently, as everyone is talking about about the Supreme Court's spartan docket, SCOTUS announced five new cert grants today.  All the details at here at SCOTUSblog, and this is Lyle Denniston's account of the three habeas cases new to the Court's docket:

In one of the criminal appeals the Court accepted for review, the Court will rule on a federal appeals court's authority to overturn a death sentence in a habeas case, based on a finding that the prosecutor's closing argument in the penalty phase was unfairly inflammatory (Roper v. Weaver, 06-313).

The question at issue in Fry v. Pliler (06-5247) is whether a trial judge's order to exclude evidence that a third party was guilty of the crime can ever be excused as "harmless error."

The fifth case the Court granted is Bowles v. Russell (06-5306), testing whether a federal appeals court may dismiss as too late an appeal that a District Court had authorized, out of the usual time limits but after the District Court had reopened the appeal time.

Helpfully, Kent Scheidegger provides links to the circuit rulings being reviewed here.

Some recent related posts:

• Solving the SCOTUS docket mystery
• What SCOTUS should be doing
• Slow-poke SCOTUS: a sign of division?

Man bites dog: Eighth Circuit affirms downward variance

Should we call this the Claiborne effect? Today the Eighth Circuit, the wake of the Supreme Court recent cert grant in an Eighth Circuit case involving a reversal of a downward variance, actually affirmed a significant downward variance in US v. Wadena, No. 06-2535 (8th Cir. Dec. 7, 2006) (available here).   The fact in Wadena are compelling (the defendant is an ill, older gentleman who committed fraud) and the opinion is really interesting.  Here is one passage that really caught my eye:

Although [four Eighth Circuit precedents] involved the reversal of downward variances that had resulted in probation when the Guidelines had called for imprisonment, they do not stand for a blanket rule that all such variances are unreasonable.  Such a rule would amount to the judicial elimination of a sentencing option that would otherwise be available under federal criminal statutes that do not impose mandatory imprisonment, including the statute at issue in this case.... That kind of categorical, mandatory approach to sentencing on the basis of judicially-found facts is precisely the type of sentencing regime the Supreme Court rejected in Booker.

The panel in Wadena goes on to distinguish on the facts its four prior precedents reversing downward variances, and does so with lots of dicta that defense attorneys will surely appreciate.

Solving the SCOTUS docket mystery

In this morning's New York Times, Linda Greenhouse has this terrific article entitled "Case of the Dwindling Docket Mystifies the Supreme Court."  Linda provides reasons for the problems SCOTUS has had filling its docket, but one is most fundamental: "The federal government has been losing fewer cases in the lower courts and so has less reason to appeal." 

Of course,this is especially true in the federal sentencing universe after Booker, where the government is far more likely to seek (and win) through en banc review rather than through cert when it (rarely) loses before a circuit panel.  (I have often said since Blakely that the US Supreme Court is now probably the most liberal appellate court in the nation on sentencing issues; the Justice Department is obviously not eager to have the Court that brought us Blakely and Booker considering many sentencing issues.)

I dispute the notion that there is a "paucity of cases that meet the court's standard criteria" for review.  (Linda attributes this view to the Justices and Orin Kerr seems to agree.)  There are numerous circuit splits on Booker issues that impact thousands of cases every month.  Right after Booker, we had a crazy three-way circuit split over Booker plain error the Court refused to consider.  And, as I have detailed here, even after the Court considers reasonableness review in Claiborne and Rita, there are at least three other major circuit splits on how advisory guidelines are supposed to work.

In addition to four important post-Booker issues that surely "meet the court's standard criteria," there are many other sentencing issues that have split the lower courts before and after Blakely.  These issues range from the scope of the "prior conviction" exception to the burden of proof for large sentence increases to the application of Blakely to non-prison sentences to the constitutionality of residency restrictions and so on and so on....

Significantly, while the SCOTUS docket has shrunk dramatically over the last 20 years, the size of federal and state criminal justice systems have increased dramatically.  There are literally millions more criminal justice cases in the system now than there was two decades ago.  In my view, the problem is not the lack of worthwhile cases, the problem is a Supreme Court which has altered its view on what sorts of cases seem worth its time and energy.

What the latest USSC data reveal

Though I have not yet assessed all the particulars, the latest USSC sentencing data (basics here) suggest that the circuits' anti-defendant tilt in their approach to reasonableness review is significantly impacting the rate at which district judges go below the guidelines.  (Some recent evidence of the circuits' anti-defendant tilt appears here and here, older evidence is here.)

Here's what I noticed from the last three data reports from the USSC's Booker page.  District judges were going below the guidelines (either via departures or variances) in 12.4% of all cases through June 1 in Fiscal Year 2006.  The data through June 30, however, showed judges going below the guidelines in only 12.1% of all cases in FY 2006.  The latest stats through September 30 now show that judges went below the guidelines in only 11.9% of all cases for all of FY 2006. 

Because these number are cumulative, this accounting does not reflect the particularly low variance rate for the last two quarters of FY 2006.  My rough guess is that judges have been downward varying in less than 1 of every 10 cases over the last two quarters of FY 2006.  Also Figure I in this latest data run shows that some average drug sentences have gone way up the last two quarters (especially for crack and meth); Figures A and B suggest this may be because district judges now varying less in these cases.

Laughing all the way to the (en) banc after Booker

In a very long post here (his longest ever?), Howard Bashman gives his view on the Eighth Circuit's distinctive procedural handling of the crack sentencing case Spears (discussed here and here).  Howard sensibly speculates about how a likely 2-1 win for the defendant before the Spears panel became a 10-2 loss after the full Tenth Circuit got involved.  He says he sees "nothing whatsoever suspicious or unusual going on" in Spears.

Howard's story makes sense, but the handling of Spears still seems quite "unusual" to me.  Howard does not reference any other circuit cases handled this way, and I've never seen such an en banc reversal without the issuance of a panel opinion or an opportunity for more briefing or argument.  Significantly, the Third Circuit issued a major ruling (Gunter) supporting the defendant's position after the original briefs and argument to the panel, so there was a significant new development worth briefing and discussing with the court.

The broader story is how circuits are even employing en banc practice to disfavor defendants after Booker.  The government wins roughly 99% of all reasonableness appeals after Booker.  And yet, when the rare defendant prevails before a three-judge panel, circuits seems eager to go en banc to undo the defendant's apparent victory.  Spears is one example, and on-going en bancs in the Sixth and Ninth Circuits also followed a rare defense win on reasonableness review.  To my knowledge, not a single one of the 2000+ government wins on reasonableness review has be vacated and reviewed en banc by any circuit.

Tenth Circuit affirms another above-guideline sentence

I never cease to be amazed after Booker how readily circuits approve upward variances based on reasons they typically reject for downward variances.  The recent example comes from the Tenth Circuit's work in US v. Shaw, No. 05-6074 (10th Cir. Dec. 6, 2006) (available here).

In Shaw, the Tenth Circuit notes that "[o]rdinarily, the disparity between co-defendants' sentences is not grounds" for deviating from the guidelines.  Nevertheless, the Tenth Circuit in Shaw approves the district court's large variance above the guideline range so Shaw's sentence matched a co-defendant's higher guideline sentence.

Apparently a concern for co-defendant disparity is reasonable when it prompts a sentence increase, but is more suspect when it leads to a sentence decrease.  As Arsenio Hall might have said on his long-ago show, this is another aspect of the post-Booker world "that makes you go hmmm."

First Circuit rejects application of Sixth Amendment to mandatory restitution

Formally joining other circuits in limiting the reach of Blakely and Booker, the First Circuit in US v. Milkiewicz, No. 06-1192 (1st Cir. Dec. 6, 2006) (available here) Wednesday held that "like all of the other circuits to consider this question, we conclude that Booker and its antecedents do not bar judges from finding the facts necessary to impose a restitution order."  (As Milkiewicz highlights, though there is consensus on this conclusion, there this is a circuit split on the rationale.)

Notably, the panel in Milkiewicz concedes that a "literal application of the Supreme Court's language might suggest" that the defendant has broader constitutional rights in this setting.  But apparently lower courts these days all feel it is appropriate to reject a "literal application of the Supreme Court's language" when that might provide defendants with greater procedural protections in the criminal justice system.

Latest Booker stats from the USSC

I am pleased to discover that, over at the USSC's Booker page, one can now find the latest "Quarterly Sentencing Update."  Available at this link, this data update provides an "extensive set of tables and charts presenting cumulative quarterly data on cases sentenced in fiscal year 2006.  The numbers are prepared using data sentenced by close-of-business on September 30, 2006 and received, coded, and edited by the Commission by November 27, 2006."

The timing is great for me, because I now have to go into a faculty meeting in which a USSC data report will seem interesting.  Late tonight I hope to provide some commentary on what this latest data might show, but for now I'll just link below to some of my prior data commentaries:

Recent posts on past Booker data and related issues:

• Please feed the data junkies, USSC
• Latest USSC data: "traditional" departures making a comeback
• A new (and new type of) data report from the USSC
• Key questions for USSC: Now what...?

So many goodies around the blogosphere

I am a bit overwhelmed by all the notable reading I see around the blogosphere, so I will just plug those blogs that have multiple posts related to sentencing worth checking out:

• Capital Defense Weekly
• Crime and Consequences
• Corrections Sentencing
• Fourth Circuit Blog
• Ohio Death Penalty Information
• Sex Crimes

The joys of loss calculations

Anyone who enjoys federal guideline minutiae should be sure to check out today's work by the Eleventh Circuit in US v. Cedeno, No. 05-16616 (11th Cir. Dec. 6, 2006) (available here).  Here is the introduction to whet appetites:

Valentin Cedeno and Angel Concepcion participated in smash-and-grab job, using sledgehammers to bash open a large display case at Mayor's Jewelers in Boca Raton, Florida.  They made off with 108 expensive watches with a total value of $1,485,000.  The store got the watches back after the police recovered them, and it spent $13,929 repairing the damage some of the watches suffered during the smashing and grabbing....  The key issue at sentencing was the amount of "loss" under United States Sentencing Guidelines §§ 2B3.1(b)(7)(E)–(F). If the loss did not exceed $1,500,000, Cedeno and Concepcion were due a four-step increase in the offense level, but if it exceeded $1,500,000, they were in line for a five-step increase.

The (hinky?) procedural back-story on Spears

As detailed here, yesterday the Eighth Circuit in Spears issued a major en banc ruling on crack sentencing after Booker.  When the ruling came out, I couldn't remember when the en banc oral argument took place.  Professor Mark Osler then provided this report detailing the procedural quirkiness in this case:

On June 14 of this year, I argued before a three-judge panel in the Eighth Circuit case of U.S. v. Spears. The panel was composed of Judges Lay, Bye, and Riley.  I was arguing on behalf of a group of amici supporting the defendant's downward variance based on the harshness of the 100/1 powder/crack ratio.

At argument, it was clear that Judges Lay and Bye had some sympathy to our side, and that Judge Riley (while very knowledgeable) was hostile to our position.  For months, no opinion was issued.  Somewhat mysteriously, an en banc opinion has now been issued, with Riley writing for the majority to reverse the sentence and Lay and Bye dissenting.

What floored me was that there was no en banc hearing or briefing — the case seamlessly converted into an en banc decision without a panel opinion being issued.  Checking the docket, I see that the following order was filed on October 18 of this year:

On its own motion, the court en banc has voted that these cases will be resubmitted en banc, and the June 14, 2006 submission before the panel consisting of Judge Bye, Judge Riley, and Judge Lay is vacated.  The court en banc will determine whether further briefing and argument are required, and if they are, the clerk will notify the parties of any schedule which is established for further briefing and argument.

From what I can surmise, then, what happened is the following: Initially, the panel was divided 2-1, with Judge Bye writing a majority opinion and Judge Riley preparing a dissent.  However, at this point the case did not proceed to the logical next step of a ruling being issued by the panel.  Instead, Judge Riley was able to get the remainder of the judges in the circuit to agree to his dissent, and "on its own motion" the court as a whole voted to make the Riley dissent the majority opinion of the en banc court, without the messiness of hearings or a panel opinion.

Does anyone else see a problem with this process?  At the very least, I would like to have had the chance to address the questions of the remainder of the court.

Transcripts of USSC crack hearings

The US Sentencing Commission has now made available at this link the full hearing transcript from the November 14, 2006, public hearing on cocaine and federal sentencing policy at the Georgetown University Law Center.  The transcript runs 300+ pages, and kudos will go to any readers who pinpoint notable passages in the comments.

Some related posts on crack sentencing:

• Extended account of USSC crack hearing (with lots of links)
• Two decades of crack(ed) sentencing
• Noticing different legislative reactions to meth and crack
• Nice Slate commentary on crack sentencing
• New ACS issue brief on crack sentencing disparity
• Insightful report and analysis of Booker on crack

Why Lopez is a big deal

A commentor here and FPD Steve Sady have effectively pointed out that I was quite wrong to suggest that today's SCOTUS decision in Lopez v. Gonzales might not be a big deal (basics here).  As Steve explains in this post, the Supreme Court has previously "said that the definition of 'crime of violence' under the immigration statute and 'aggravated felony' had to have the same meaning in both sentencing and immigration contexts."  Consequently, for complex reasons Steve details in his post, Lopez is actually a pretty big sentencing case because it reverses bad guidelines sentencing law in nearly every circuit.

UPDATE:  How Appealing has now collected newspaper coverage of Lopez here.

Seventh Circuit continues reasonableness ways

In two opinions today, the Seventh Circuit continues the circuits' pattern of affirming nearly every within- and above-guideline sentence appealed by defendants.  In US v. Orozco-Vasquez, No. 05-3920 (7th Cir. Dec. 5, 2006) (available here), Judge Sykes affirms a sentence "42 months more than the high end of the advisory sentencing guidelines range of 63-78 months."  In US v. Gama-Gonzalez, No. 06-1965 (7th Cir. Dec. 5, 2006) (available here), Judge Easterbrook affirms a within-guideline sentence and speaks at length about reasonableness review. 

In part because Judge Easterbrook is in fine form, Gama-Gonzalez merits quoting at some length (with cites omitted and italics in original):

To say that a sentence within the range presumptively is reasonable is not to say that district judges ought to impose sentences within the range.  It is only to say that, if the district judge does use the Guidelines, then the sentence is unlikely to be problematic.

United States v. Booker, 543 U.S. 220 (2005), increases district judges' discretion.  It will be the rare sentence indeed that was required under the Guidelines before Booker but forbidden afterward, when discretion has gone up rather than down.  One permissible use of discretion is to start with the Guidelines' framework, which is designed to curtail unjustified disparity in sentences — for avoiding unjustified disparity is one of the statutory objectives.  Likewise the Guidelines recognize other statutory criteria, such as choosing punishment that achieves an appropriate level of deterrence and desert.  When saying that sentences within the Guidelines are presumptively reasonable, we mean no more than the modest proposition that district judges generally possess the discretion under §3553(a) and Booker to follow the Guidelines, if they so choose, without acting un-reasonably. It is accordingly unnecessary to hold this appeal, and others like it, for the Supreme Court's decision in Rita v. United States, cert. granted, No. 06-5754 (U.S. Nov. 3, 2006).

A presumptively reasonable sentence is not a conclusively reasonable one, for the Guidelines may omit some factor to which §3553(a) or a sound exercise of discretion gives weight....  A judge must deal with serious arguments for lower sentences, but Gama-Gonzalez's argument was insubstantial.  Many states, using three-strikes laws, would imprison him for 25 years or more even though none of his felonies was violent.  His federal sentence of three years and one month for a third felony conviction is comparatively modest.

Among other flourishes, Judge Easterbrook references the comparative severity of state sentencing to support the Seventh Circuit's reasonableness finding in Gama-Gonzalez.  I hope the Seventh Circuit might likewise approve whenever a district judge (like Judge Adelman, for example) references the comparative leniency of state sentencing (on minor crack offenses, for example) to support the reasonableness of a below-guideline sentence. 

Also, as state law gurus can confirm, I believe only in California, and certainly not in "many states," would an offender like Gama-Gonzalez possibly face a sentence of 25+ years' imprisonment.  Indeed, I am pretty sure California's three-strikes laws would not be applicable to Gama-Gonzalez because his second offense involved only possesson of marijuana.  So I guess the real question is whether the Seventh Circuit would approve of a district judge mis-stating the comparative leniency of state sentencing to support its ruling.

Eighth Circuit follows the herd on crack sentencing

In an en banc ruling today in US v. Spears, No 05-4468 (8th Cir. Dec. 5, 2006) (available here), the Eighth Circuit has adopted the standard lower court view of post-Booker variances based on the crack/cocaine sentencing disparity.  Here is the official summary of the long opinions in Spears:

[Riley, Author, with Chief Judge Loken, Lay, Wollman, Murphy, Bye, Melloy, Smith, Colloton, Gruender, Benton, and Shepherd, Circuit Judges]  Evidence was sufficient to support conspiracy to distribute crack and powder cocaine based on witness testimony and defendant's videotaped confession.  Admission of prior 2000 felony conviction was not an abuse of discretion.  District court's categorical grant of a downward variance using a 20:1 powder cocaine to crack cocaine quantity ratio rather than 100:1 ratio was error.  Neither Booker nor section 3553(a) authorizes district court to reject 100:1 quantity ratio.  District court failed to perform section 3553(a) analysis and conduct an individualized, case-specific evaluation of the facts or of the defendant. Case is remanded for resentencing.  Judge Bye and Lay dissent.

A few quick comments on Spears before I get to read the opinions closely: 

1.  It is notable and very disappointing that Judge Diana Murphy, who was chair of the US Sentencing Commission when it produced its 2002 report stating the crack guidelines undermine the goals set forth by Congress in 3553(a), does not write in this case.  She should know more about this issue than perhaps any other judge in the country, and yet she is silent here.

2. It is a below-guideline crack sentence that was reversed by the Eighth Circuit that is being reviewed by the Supreme Court in Claiborne.  If defendant Spears seeks cert, it seems likely he should get a GVR after SCOTUS decides Claiborne this summer.

Some related posts on crack sentencing after Booker:

• Extended account of USSC crack hearing (with lots of links)
• Two decades of crack(ed) sentencing
• Noticing different legislative reactions to meth and crack
• Nice Slate commentary on crack sentencing
• New ACS issue brief on crack sentencing disparity
• Insightful report and analysis of Booker on crack
• Crack sentencing and the anti-parsimony pandemic
• The facts and decisions in Claiborne and Rita
• The district court sentencing in Claiborne and cert briefing

UPDATE:  Because the dissent in Spears adopts many ideas in the amicus brief I signed in this case, I am obviously partial to its basic approach to these issue.  I find especially compelling this articulation of the issue by Judge Bye:

Under the current system (which Congress has chosen not to change following Booker), Congress can only advise district courts on the imposition of a particular sentence within a particular range.  Thus, if we start from the premise the guidelines' system is advisory, which we must, any advice given within such a system cannot be binding by its very nature, no matter whether the advice is on matters of broad policy or otherwise.

That said, I think both opinions in Spears provide effective accounts of the latest developments and main viewpoints of the circuits on the crack/cocaine sentencing debate.  Anyone interested in catching up on these debates ought to start by reading Spears.

SCOTUS limits deportable offenses

As reported here at SCOTUSblog, the Supreme Court in Lopez v. Gonzales "ruled, by an 8-1 vote on Tuesday, that conviction of a drug crime that is a felony under state law but only a misdemeanor under federal law is not kind the kind of offense that triggers potential deporation."   Justice David Souter wrote the opinion for the Court, with only Justice Clarence Thomas dissenting.

I doubt this ruling will have a dramatic impact on criminal law or immigration law, unless the opinion has lots of notable dicta.  I'll comment more when I get a chance to review the opinion.

UPDATE:  The Court's work in Lopez can now be found at this link.  Nothing earth-shattering jumped out from a quick read of the opinions, both of which have an intricate focus on seemingly small issues of statutory interpretation.  Perhaps what is most interesting is that Justice Souter's opinion was able to secure all the Justices votes save for Justice Thomas.

Great reads on SSRN

This morning I see these four new pieces on SSRN, all of which look very interesting:

• Embracing Chance: Post-Modern Meditations on Punishment by Bernard E. Harcourt

• Capital Punishment is Unconstitutional, but that Doesn't Mean that the Supreme Court Should So Rule by Michael J. Perry

• Desert, Democracy, and Sentencing Reform by Alice Ristroph

• On the Uses and "Abuses" of Empirical Evidence in the Death Penalty Debate by Paul R. Zimmerman

Crazy capital developments in two states

Two states with scheduled executions for this week have had some crazy developments:

• In Ohio, as well covered by ODPI, it appears that Jerome Henderson had the good fortune of pulling the right Sixth Circuit panel for his stay application.  That panel, voting 2-1, granted a stay over the weekend, and today neither the full Sixth Circuit nor the Supreme Court bothered to undue it.  Thus, Henderson's execution will not go forward tomorrow (even though other Ohio defendants seemingly making similar claims were executed earlier this year).

• In Virginia, as detailed in this AP article, a defendant with a troubled mental history is supposed to be executed on Friday.  According to the article, "several of Walton's fellow death row inmates said his behavior is consistently bizarre, describing him as 'nuttier than a fruitcake,' 'crazy as a bed bug,' and 'a walking talking cukoo (sic) bird.'"

UPDATES:  As detailed in this AP report, Virginia "Gov. Timothy M. Kaine on Monday postponed the execution of a man convicted of killing three neighbors to allow more time to review claims the condemned inmate is mentally retarded and insane." 

Also, this AP story provides more information about the stay in the Ohio capitl case.

Slow-poke SCOTUS: a sign of division?

I noted this morning that, by this date during SCOTUS October Term 2005, the Supreme Court had already issued 10 opinions.  (The list of OT '05 opinions is here, showing six per curiams and four signed opinions by the end of Novermber.)  But now, more than two months into October Term 2006, the Court has given us only two opinions.  (The list of OT '06 opinions is here, showing one per curiam and one signed opinion.)

Since the Court is usually able to get unanimous opinions out quickly, I am taking the Court's slow-poke ways as a sign that there is little consensus at the start of the new Term.  I guess this would not be a surprise in light of the criminal law start to OT '06, but it is still notable that the Roberts honeymoon seems to be over.

An intriguing note on Blakely and "civil" remedies

The latest issue of the Columbia Law Review includes an interesting Note exploring how Blakely might affect orders of restitution and forfeiture.  This Note is entitled "A Civil Jury in Criminal Sentencing: Blakely, Financial Penalties, and the Public Rights Exception to the Seventh Amendment," and is available at this link.  Here is the abstract:

In the 2004 case of Blakely v. Washington, the Supreme Court held that the Sixth Amendment's criminal jury trial right applies not only to the guilt phase of a trial, but also to the sentencing phase.  Since then, criminal defendants have brought Sixth Amendment challenges to judge-imposed restitution and forfeiture, arguing that the facts underlying such financial penalties must be proven to a jury beyond a reasonable doubt.  Many circuits have decided that Blakely does not apply to restitution and forfeiture because they are civil remedies, as opposed to criminal penalties, and thus do not fall within the ambit of the Sixth Amendment.  This Note argues that, even if restitution and forfeiture are civil in nature, the logic of Blakely suggests that the Seventh Amendment's civil jury right nevertheless applies to such penalties.  It then shows how the "public rights" doctrine — a judicial construct in administrative law used to justify exceptions to the Seventh Amendment’s civil jury right — provides constitutional support for exempting certain financial penalties from the reach of Blakely.

Cert denied in Angelos mandatory minimum case

SCOTUSblog provides this link to today's Order List from the Supreme Court, and I noticed that the Court has denied cert in the Weldon Angelos case.  Angelos is the first offender who, because of federal mandatory minimums, was sentenced to 55 years' imprisonment (begrudgingly) by federal District Judge Paul Cassell for a series of marijuana sales. SCOTUSblog had the Angelos case is on their "petitions to watch," but the Court has now taken a pass.  Of course, Weldon Angelos can, and likely will, still pursue some of his legal claims though a federal habeas action.

Some related posts:

• What are the odds of a cert grant in Angelos?
• Judge Cassell laments, but imposes, harsh mandatory sentence
• Amicus filing in Angelos mandatory minimum case
• Tenth Circuit affirms 55-year mandatory minimum sentence in Angelos
• Catching up with Weldon Angelos

UPDATE:  The AP has this brief report on the denial of cert in Angelos.

MORE:  The Salt Lake Tribune has this extended piece on the Angelos case.

Notable crack sentencing comments from Sixth Circuit

At the end of a long opinion dealing with lots of issues, the Sixth Circuit today in US v. Caver, No. 05-3295 (6th Cir. Dec. 4, 2006) (available here), has this interesting discussion of crack sentencing after Booker in the course of rejecting a defendant's argument that his within-guideline sentence is unreasonable:

Defendant Cloud points to nothing about the particular facts of his case that make his sentence unreasonable; rather, he argues that, post-Booker, the 100:1 ratio is per se unreasonable.  We disagree. Defendant Cloud, in effect, asks this court to not find his sentence unreasonable, as we are authorized to do by Booker, 543 U.S. at 261, but rather to declare a portion of the Sentencing Guidelines unreasonable under all circumstances. Were we to act upon Defendant Cloud’s suggestion, we would essentially be exercising legislative power. Booker does not authorize this. Thus, while a departure from the 100:1 ratio may well be reasonable in a particular case, applying the ratio does not, ipso facto, make a sentence unreasonable under existing case law.  This is so even though we as a panel might disagree with the 100:1 ratio or the rationale for it. Because Defendant Cloud has not demonstrated that the 100:1 ratio was unreasonable in his case, his challenge to his sentence on this ground must fail.

Intriguing ex post Booker issue from Second Circuit

This article from the Connecticut Post concerning the sentencing of a former state senator alerted me to an intriguing (unpublished) opinion from the Second Circuit in US v. Newton, No. 06-0714 (2d Cir. Nov. 30, 2006) (available here).  Newton is interesting in part because of the consideration (and ultimate avoidance) of ex post facto issues after Booker as to which version of the guidelines should apply.  As detailed in posts noted below, I think this is a huge topic that is not being fully explored in lower court post-Booker jurisprudence.

• Seventh Circuit holds ex post facto no longer applicable to guideline changes after Booker
• Who will be most sorry about Demaree?
• Ninth Circuit (unwittingly?) creates Booker ex post circuit split

Documentary on restorative justice

A favorite reader spotted an interesting looking documentary about restorative justice airing tonight at 8pm on MSNBC entitled "Beyond Conviction."  At this link is a commentary from the director, which has this introduction:

This documentary tells the story of two survivors of horrific crimes on a journey toward healing and resolution. The film follows participants through a program in which victims of the most violent crimes confront the perpetrators.  In the essay below, the director shares her experience making the film.

This official website indicates that the documentary has received a number of film festival awards.  My TiVo is set.  The official website also has a nice collection of restorative justice links here.

Executions and clemeny in Ohio

This local AP story discusses the stories of the death penalty and executive clemency in Ohio as out-going governor "Bob Taft is debating a plea for mercy from a condemned inmate that, if rejected, will result in the 25th prisoner being put to death during Taft's time in office."   The article provides lots of information about the history of clemency and the death penalty in Ohio; it also spotlights that "Ohio has had one of the nation's busiest death chambers since 1999, including executing the most inmates of any state after Texas in both 2004 and again this year."

Interestingly, as detailed here at ODPI, this last possible execution during the Taft Administration could be disrupted by on-going lethal injection litigation.  And, as I have discussed in a number of prior posts, the new incoming governor and attorney general of Ohio have both expressed significant reservations about capital punishment.  Stay tuned.

Some recent related posts:

• Could Ohio and Wisconsin chart a path to a better death penalty?
• A new look at the death penalty in Ohio
• Early tests for a new capital era in Ohio?

A tough question after finding kiddie porn

A few weeks ago, Randy Cohen, who writes "The Ethicist" column for the New York Times Magazine, called me to get a better understanding of the sentencing dynamics surrounding the possession of child pornography.  This week's column has the question that prompted his call: 

I am an Internet technician.  While installing software on my company's computer network, I happened on a lot of pornographic pictures in the president's personal directory, including some of young children — clearly less than 18, possibly early teens.  It is probably illegal and is absolutely immoral.  Must I call the police?  I think so, but I need my job.  Signed S.M.N.

Randy Cohen was kind enough to quote me in his answer, though I am not entirely sure I agree with Cohen's ethical judgment.  I am sure, however, that this is a tough question, and I am interested in reader reactions.