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June 23, 2007

Circuit splitting headaches after Rita

In this post last year, I noted four major circuit splits on basic and fundamentally important post-Booker issues.  Ironically, the opinion for the Court in Rita did not resolve the one circuit split that the case seemed poised to address, but the opinion does indirectly suggest resolution of two other splits.  Let me review:

1.  The presumption of reasonableness:  As discussed here and here, Rita declared permissible a non-binding appellate presumption that within-guideline sentences are reasonable.  But Rita did not demand, or even suggest, that circuit must apply such a presumption.  Rita also arguably added confusion about how the presumption should operate and how it can be rebutted on appeal.

2.  The persistence of Rule 32(h):  The circuits are nearly evenly split on whether Rule 32(h) requires a district court to give advance notice before varying from the advisory guidelines range.  Though Rita does not formally address this issue, the opinion cites Rule 32 when asserting that, post-Booker, sentencing decision-making should be subject to "the thorough adversarial testing contemplated by federal sentencing procedure."  The Rita opinion also cites Burns , saying it recognizes the "importance of notice and meaningful opportunity to be heard at sentencing."  Thus, it seem that the Rita Court favors the view of circuits applying Rule 32(h) to variances.

3.  The role of "traditional" departures:  As previously noted here, Rita suggests the continued validity of "traditional" departure analysis after Booker, and thus casts serious doubt on the Seventh Circuit's repeated assertion that departures are obsolete after Booker.   As I long ago discussed here and here, this is practically a very important issue that needs to settled in order to have a uniform and consistent federal sentencing system.

4.  The applicable version of the guidelines:  Rite does not address directly or even indirectly the Seventh Circuit's view (discussed here and here) that, after Booker, district courts should apply the most recent version of the now-advisory guidelines even when they recommend a longer sentence than the guidelines applicable at the time of the defendant's crime.  Other courts and litigants have been operating under the pre-Booker rules for using the guidelines applicable at the time of the crime.

There have been, of course, lots of other post-Booker splits in the district courts about crack sentencing, fast-track policies, acquitted conduct, burdens of proof and other large and small issues.  These specific substantive issues are not addressed at all in Rita (though such issues may arise indirectly in the Court's forthcoming work in Gall and Kimbrough).

In short, Rita clearly resolved very few issues that have embroiled lower courts after Booker, and yet arguably it did stir up some still-simmering debates.  It will be very interesting to see how different circuits come to integrate Rita into their existing post-Booker jurisprudence.  I suspect most circuits will find ways to read Rita to confirm and ratify their particular circuit's chosen post-Booker doctrines.

June 23, 2007 in Rita reactions | Permalink | Comments (6) | TrackBack

June 22, 2007

Any reports from the DC Crime Summit (or Rita reactions)?

As discussed here and here and here, Representative Bobby Scott, Chairman of the House Subcommittee on Crime, Terrorism and Homeland Security, has been leading a "Summit on Crime Policy" over the last two days.  Entitled "Violent Crime — Prevention and Solutions from the Experts,"  the summit brought together more than three dozen leading voices from a broad array of organizations, (although absent was anyone from the Justice Department).

I would be grateful if any reader who attended might report on the event.  I am especially eager to know if there was any discussion of possible inside-the-Beltway reactions to Rita (from Congress or DOJ).

UPDATE:  A kind reader sent in this terrific report from the Sentencing Lawapalooza:

I attended two of the four panels at Bobby Scott's crime summit, and from what I saw, it was great.  A few of the panelists mentioned Rita, but not in depth.  Even Lisa Rich, the panelist from the Sentencing Commission, focused on other issues - namely, the crack/cocaine disparity.  And I wouldn't worry about the absence of the DoJ: Scott framed the summit as a way for him to get ideas for new legislation, and since most of the panelists proposed reining in the DoJ and reducing the federalization of crime, I doubt the DoJ would have added much to the conversation....

Anyway, it was interesting to hear what issues are at the top of the advocates' agendas, and Scott and Conyers seemed enthusiastic.  Many people expressed interest in getting copies of the panelists' testimony, and it sounded like Scott's staff was trying to figure out a way to make it available to the public.

June 22, 2007 in Who Sentences | Permalink | Comments (3) | TrackBack

AFDA webcast on Rita

As detailed on this page, Gregory Nicolaysen, the founder of the Association of Federal Defense Attorneys (AFDA), has organized an audio webcast for this Monday (June 25) at 12noon EDT to allow me to discuss Rita and its possible aftermath.  (Unlike other groups seeking big bucks for such webcasts, the AFDA only charges a nominal fee for participating and the webcast is made available free to all federal court personnel, federal public defenders, and full-time law professors and students.)

Though I plan primarily to recap and expand upon much of the Rita commentary already appearing on the blog, I'd be grateful if readers might use the comments to note any issues that seem particular important for me to cover during this webcast.

June 22, 2007 in Rita reactions | Permalink | Comments (0) | TrackBack

NPR report noting the Lewis Libby and Victor Rita parallels

Today's broadcast of NPR's "Morning Edition" included this great segment by Nina Totenberg entitled "High Court Sentencing Vote May Bode Ill for Libby."  Here's is the web summary:

I. Lewis "Scooter" Libby, former chief of staff to Vice President Cheney, is appealing his sentence of 30 months in prison for lying and obstructing an investigation into the leak of a CIA operative's identity. But the situation isn't looking good, after the U.S. Supreme Court voted 8-1 to uphold the sentencing decision of a North Carolina man who was convicted of charges similar to Libby's.

Some recent related posts:

June 22, 2007 in Libby sentencing | Permalink | Comments (1) | TrackBack

More strong Rita analysis at SCOTUSblog

All the post-Rita analysis at SCOTUSblog yesterday was fantastic, and the strong insights continue to flow today with new posts from Jeff Fisher and from Carissa Byrne Hessick and F. Andrew Hessick.  These paragraphs from the Hessick's effectively spotlight some particularly important appellate realities after Rita:

Rita does not say that the circuits have to adopt the presumption of reasonableness.  Indeed, the Court appears to have been careful in its phrasing, stating that the question was whether a court of appeals "may apply a presumption of reasonableness" to a district court sentence that reflects a proper application of the Sentencing Guidelines and that the presumption is "nonbinding" --- which seems to mean that a circuit that has adopted the presumption need not follow it.

This seems a little odd.  Certiorari is usually granted to resolve differences in the circuits; but Rita appears to endorse differing treatment in different circuits.  The differing treatment also seems at odds with the goal of uniformity under §3553(a).  Basically everyone agrees that the presumption will result in more guidelines sentences in the district courts located in circuits that have adopted the presumption (Souter's dissent says this is bad; Breyer's majority says that it is good).  By contrast, guideline sentences will be less common in those circuits without the presumption.  It seems entirely possible that sentences for similarly situated individuals may vary depending on whether the sentencing court is in a presumption circuit.

Added to this foreordained split and potential for disparate sentences is Rita's failure, as David Stras observes, to explain what the presumption of reasonableness means.  Given the Court's statements that the presumption is not binding, something akin to Skidmore deference seems to be the best candidate.  But we can't be sure.  All that can be gleaned from Rita is that the presumption means that circuits have the option of concluding --- without conducting much analysis --- that within guideline sentences are lawful.  The lack of guidance plus the potential for disparity seems a good recipe for future Supreme Court intervention.

A few other related Rita analysis posts:

June 22, 2007 in Rita reactions | Permalink | Comments (0) | TrackBack

Whither (or wither) Apprendi-Blakely rights in coming constitutional sentencing fights?

Cutman One (of many?) reasons why the Supreme Court's Sixth Amendment jurisprudence has been so quirky and unpredictable has the the fact that the Court has been, from the very beginning and even in all state cases, shadow-boxing about the validity, viability, virtues and vices of the federal sentencing guidelines.  Ever the persistent cutman, Justice Breyer has managed through the Booker remedy and his Rita opinion to keep the federal guidelines standing in round after round of the (now decade-old) modern Sixth Amendment jurisprudential bout.  (And, because of their procedural posture and facts, it seems very unlikely that Gall or Kimbrough could deliver a constitutional knock-out blow to the federal sentencing guidelines). 

But, as evidenced by rulings like Cunningham, Justice Breyer has limited ability to prevent — and perhaps limited interest in preventing — the Court's Sixth Amendment jurisprudence from knocking down other structured sentencing reforms.  And yet, even though Cunningham majority opinion had six votes for a seemingly strong view of the Court's Sixth Amendment work, reading all the opinions in Rita gives me the impression that only three Justices (Justices Scalia, Souter and Thomas) are deeply concerned with safeguarding, in Justice Souter's words, "the guarantee of a robust right of jury trial."

In the wake of Rita, I ultimately think we will need to await a district non-federal-guidelines case to know where the Court is prepared to go with its Apprendi-Blakely jurisprudence (e.g., a case dealing with the scope of the prior conviction exception or Blakely's applicability to supervised release revocation or to restitution awards). With the federal guidelines now likely to surviving — even though they may end up significantly bruised after Gall and Kimbrough get in their blows — perhaps Justice Breyer (and others in the Rita majority) will be prepared to spend more time in Apprendi land when the fate of the federal sentencing guidelines do not hang in the balance.

June 22, 2007 in Rita reactions | Permalink | Comments (1) | TrackBack

Fifth Circuit channelling Rita majority(?)

Though surely authored before Rita, the Fifth Circuit yesterday released US v. Walters, No. 05-51634 (5th Cir. June 21, 2007) (available here) reversing an above-guideline sentence because "the degree of departure in this case is substantial, and there must be more than mere lip service to the § 3553(a) factors to justify such a departure," and "the court did not adequately articulate reasons consistent with the sentencing factors to support the reasonableness of this sentence."

June 22, 2007 in Booker in the Circuits | Permalink | Comments (2) | TrackBack

Some empirical realities of federal sentencing decision-making

Fortuitously timed in light of the Rita ruling, Max Schanzenbach and Emerson Tiller now have here posted on SSRN an important new paper entitled "Reviewing the Sentencing Guidelines: Judicial Politics, Empirical Evidence, and Reform." Here is the abstract:

This article presents the first large-scale empirical study of federal guidelines sentencing that matches offenders to the sentencing judge. We confirm the widely-held belief that political ideology matters in criminal sentencing – specifically, Republican-appointed judges give longer sentences than Democrat-appointees with regard to certain crimes.  More interestingly, we find evidence consistent with positive political theory that such decision making is nested within the broader political-ideological relationship of the sentencing judge and the overseeing circuit court.  We find, for example, that Democrat-appointed judges depart from the Sentencing Guidelines to give shorter sentences more often and to a greater degree when the reviewing court is politically aligned (circuit majority Democrat-appointed) than when not aligned (circuit majority Republican-appointed).  We then discuss the Supreme Court's evolving sentencing jurisprudence and the likely impact of alternatives to the present system.

We conclude that Guidelines improves sentencing consistency and preserves the benefit of appellate review.  We also proposes two potential reforms: first, mandating open access to judge identifiers in sentencing data for researchers to study sources of judicial bias; and, second, mandating ideologically mixed appellate panels for review of criminal sentences to prevent the more extreme instances of ideological alignment that frequently occur between district and circuit court panels that lead to more extreme outcomes in sentencing.

Download it while Rita is hot....

June 22, 2007 in Federal Sentencing Guidelines | Permalink | Comments (4) | TrackBack

On second read, evidence of Breyer brilliance in Rita

As I re-read Justice Breyer's opinion for the Court in Rita, a particular sentence (at slip op. 18-19) kept drawing my attention:

[The sentencing judge's] reasoned sentencing judgment, resting upon an effort to filter the Guidelines' general advice through §3553(a)'s list of factors, can provide relevant information to both the court of appeals and ultimately the Sentencing Commission.

Because this phrasing sounded strangely familiar, I went back to the amicus brief I primarily authored and found this sentence describing my vision of post-Booker sentencing realities:

Booker thus now requires judges to exercise reasoned sentencing judgment by filtering the Guidelines' advice through the dynamic, multi-faceted, purpose-oriented provisions of §3553(a).

The Rita Court's repeated emphasis on judicial sentencing decisions as "reasoned decisions" (see slip op. at 17-19) leads me to conclude that Rita has largely embraced my vision (as well as my nomenclature) for understanding Booker and how Booker reshaped the federal sentencing universe.  A fuller account of this vision appears not only this amicus brief, but also in these recent law review pieces:

June 22, 2007 in Rita reactions | Permalink | Comments (6) | TrackBack

June 21, 2007

The sweet(?) mysteries of Rita... annotated

A delicious French beer with dinner has not helped me fully understand the Rita opinion for the Court.  Here are some of the mysterious passages from Justice Breyer that I hope readers might help me understand:

MYSTERY #1, Rita opinion at slip op. at 7, 11: "For one thing, the presumption is not binding.  It does not, like a trial-related evidentiary presumption, insist that one side, or the other, shoulder a particular burden of persuasion or proof lest they lose their case.... [T]he presumption applies only on appellate review."

MYSTERY #2, Rita opinion at slip op. at 12: "[T]he sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply."

MYSTERY #3, Rita opinion at slip op. at 14: "In sentencing, as in other areas, district judges at time [sic] make mistakes that are substantive.  At times, they will impose sentences that are unreasonable.  Circuit courts exist to correct such mistakes when they occur."

MYSTERY #4, Rita opinion at slip op. at 20:  "Where a matter is as conceptually simple as in the case at hand and the record makes clear that the sentencing judge considered the evidence and arguments, we do not believe the law requires the judge to write more extensively."

MYSTERY #5, Rita opinion at slip op. at 21:  "Rita and supporting amici here claim that the Guidelines sentence is not reasonable under §3553(a) because it expressly declines to consider various personal characteristics of the defendant, such as physical condition, employment record, and military service, under the view that these factors are 'not ordinarily relevant.'  USSG §§5H1.4, 5H1.5, 5H1.11. Rita did not make this argument below, and we shall not consider it."

if you think you can help solve these mysteries, please first identify in your comments which mystery you are addressing in an effort to help me (and others) obtain Rita clarity.

June 21, 2007 in Rita reactions | Permalink | Comments (15) | TrackBack

Rita recap ... for now

Talking to colleagues and thinking about all this stuff more has generated dozens more Rita reactions in my sad little head.  But, I now need some time to digest (both ideas and food).  So, I'll sign off for a while by encouraging review of this post by Kate Stith and this post by David Stras on Rita at SCOTUSblog and also by recapping my own Rita work so far today:


June 21, 2007 in Rita reactions | Permalink | Comments (0) | TrackBack

Are within-guideline crack sentences now presumptively unreasonable after Rita?

As I have stressed repeatedly before (most recently here), the US Sentencing Commission has said officially, repeatedly and emphatically that the current crack guidelines are too harsh and thus "significantly undermine[] the various congressional objectives set forth in the Sentencing Reform Act."  (And, as detailed here and this archive, the USSC has this year put its long-held expert opinion into action by amending the guidelines, effective November 1, to lower all crack guideline ranges across the board.)

In Rita (opinion here), Justice Breyer's opinion for the Court speaks approvingly of arguments from counsel that "the Guidelines sentence itself fails properly to reflect §3553(a) considerations" and/or that "the Guidelines reflect an unsound judgment."  The Rita opinion for the Court further explains that "where judge and Commission both determine that the Guidelines sentences is an appropriate sentence for the case at hand, that sentence likely reflects the §3553(a) factors (including its 'not greater than necessary' requirement)."

Adding all this up — and again keeping in mind the USSC's own official, repeated and emphatic assertions that the crack guidelines are "greater than necessary" to achieve serve §3553(a) — shouldn't a circuit court view a within-guideline crack sentences as presumptively unreasonable?  Of course, after Rita, a district judge surely would have discretion, in the course of "exercising his own legal decisionmaking authority" to explain why he or she believes that, on the facts of a particular case, a defendant's sentence should be within or even above the current crack range.  But, unless and until a district judge explains why it is imposing a sentence that the Commission has officially, repeatedly and emphatically deemed inappropriate, I think that sentence logically ought to be reversed as greater than necessary.

June 21, 2007 in Rita reactions | Permalink | Comments (0) | TrackBack

Rita reactions around the blogosphere

Here are some early reactions to the Rita decision from sites on my blogroll:

Feel free to comment on the commentary or to note other good blog analysis in the comments.

June 21, 2007 in Rita reactions | Permalink | Comments (0) | TrackBack

The one circuit indirectly reversed in Rita

As I first noted here, the Supreme Court's decision in Rita upholds the Fourth Circuit's decision to adopt a presumption of reasonableness for within-guideline sentences, but also indirectly approves of other circuits' decisions to resist adopting this presumption.  So, it might seem that all circuit approaches to post-Booker law and practice have been sanctioned by Rita

But, because the Rita decision suggests the continued validity of "traditional" departure analysis after Booker, one of the Seventh Circuit's post-Booker views has been indirectly reversed.  Recall that the Seventh Circuit has said repeatedly that departures are obsolete after Booker, and this seem to be plain wrong after Rita.  (Notably, the Ninth Circuit also seemed to agree on this point, though less emphatically and it still have a pending en banc action to sort through post-Booker/Rita realities for its district courts.)

June 21, 2007 in Rita reactions | Permalink | Comments (2) | TrackBack

Another first view of Rita

My always very thoughtful colleague Alan Michaels sent me (and allowed me to post) this reaction to Rita:

Having read all the opinions, but once only so far, I think you are completely correct to emphasize the importance of lower-court reaction to Rita.

On the one hand, the Court's opinion, which six Justices joined, makes it clear that within Guidelines sentences will continue to not be reversed easily.  The Guidelines thus provide a safe-harbor for district judges, as well as a possible labor-saver, since it seems a within Guidelines sentence requires less explanation by the District Judge.  As both majority and dissent acknowledge, this could well encourage within Guideline sentences.

On the other hand, five Justices argue for broad discretion for district judges to go outside the Guidelines (on an abuse of discretion standard or even less review).  One can certainly argue that, in some ways, the Stevens opinion is the controlling one, at least to the extent that it empahsizes the scope of district court discretion, since Scalia, Thomas and Souter wanted more. Moreover, even the Court's opinion (perhaps to keep the votes of Stevens and Ginsburg) is careful to disavow any statement that district judges are constrained by the Guidelines. This suggests that a District Judge of a mind to give a sentence above or below the Guidelines will get the leeway to do so.

Whether district judges follow one path or the other will, as you say, determine the significance (though, of course, Gall could give them a push).

June 21, 2007 in Rita reactions | Permalink | Comments (8) | TrackBack

When and how will lower court judges construct the post-Rita world?

Because Booker had so many competing parts, its "meaning" only became clear as lower courts constructed a mostly guideline-centric approach to post-Booker sentencing law and procedure.  Rita, by my lights, largely approves a guideline-centric approach to post-Booker sentence, but also seems to indirectly approve any reasoned decisions by lower courts to take other approaches to post-Booker sentence law and procedure.  Consequently, Rita's "meaning" may only became clear as lower courts revise (or reiterate) their approach to post-Booker sentencing law and procedure.

Notably, the Sixth and Ninth Circuits have on hold en banc actions about reasonableness review which might provide those courts a chance to construct a new post-Rita world.  Also, Judges Adelman and Cassell and Gertner and Presnell and other active and speedy district judges will surely chime in before long.

Then again, perhaps everyone will try to tread water until Gall and Kimbrough get decided, even though those ruling are likely at least six month away.

June 21, 2007 in Rita reactions | Permalink | Comments (1) | TrackBack

The notable Justices not barking in Rita

Though Rita has something for everyone (and, arguably, nothing for everyone) focused on federal sentencing issues, it has very little for folks deeply interested in figuring the deeper views of particular Justices.  Specifically, I am intrigued — and somewhat disappointed as an academic — that Chief Justice Roberts and Justices Kennedy, Ginsburg and Alito are all quiet in Rita.

June 21, 2007 in Rita reactions | Permalink | Comments (6) | TrackBack

Rita has something for everyone (except Victor Rita)

Though I am going to have to read all the opinions a few more times to really take stock of what's here, my first reaction to the Rita decision (basics here) is that it has something for everyone except Mr. Victor Rita.  Indeed, for an opinion that many hoped could help clarify post-Booker sentencing realities, Rita strikes me as more likely to create continued confusion because everyone will be able to find some passages to their liking.  Let me explain:

On the one hand, those circuits that have been applying a presumption of reasonableness to within-guideline sentences now have conclusive authority that they can continue to do so.  However, the opinion for the Court in Rita does not say that those circuits which have resisted this presumption have to adopt the presumption (though I would suspect some now might).

But, on the other hand, and perhaps even more importantly as a practical matter, the opinion for the Court in Rita suggests that at least some within-guideline sentences in some cases have to be, at some point, found unreasonable by circuit courts.  Justice Stevens makes this point explicitly when he says that the Court's opinion "makes clear ... that the rebuttability of the presumption is real."  The fact that the opinion of the Court rejects Justice Scalia's suggestion that reasonableness review is only procedural provides additional fodder for those defendants, on appeal, asserting that their within-guideline sentence is unreasonable.

And yet, the opinion for the Court lauds the Sentencing Commission for its "serious, sometimes controversial" efforts to carry out its mandate "to embody in the Guidelines the factors and considerations set forth in 3553(a)," and it asserts that "it is fair to assume that the Guidelines, insofar as practicable, reflect a rough approximation of sentences that might achieve §3553(a)'s objectives."  (It is fair to assume that this sentence, insofar as practicable, might achieve a rough record for the number of qualifiers in an important sentence.)

But still, and perhaps even more importantly as a practical matter, the opinion for the Court suggests it is quite possible to make the argument that a particular "Guidelines sentence itself fails properly to reflect §3553(a) considerations" and that "the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply."

Also, just in case anyone was looking for some procedural clarity, we also are told that "a statement of reasons is important," perhaps especially so if a party "argues that the Guidelines reflect an unsound judgment, or, for example, that they do not generally treat certain defendant characteristics in the proper way." And yet, the "appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances," which sometimes "will call for a brief explanation" and other times "will call for a lengthier explanation."

Got that everyone?

June 21, 2007 in Rita reactions | Permalink | Comments (18) | TrackBack

Judge Walton explains his Libby bail ruling

Though I'm focused on the Rita ruling for the rest of today, others folks might be interested to check out Judge Reggie Walton's new opinion explaining why he denied "Scooter" Libby's request for release pending appeal. Howard Bashman has kinds posted a copy of today's opinion online, which you can access it via this link.

June 21, 2007 in Libby sentencing | Permalink | Comments (0) | TrackBack

The opinion(s) in Rita

Here is the vote breakdown in the Rita opinion (which How Appealing makes available via westlaw at this link):

A very quick read suggests the main opinion is very supportive of the work of district courts, circuit courts and the Sentencing Commission, all of which adds up to a loss for Mr. Rita on appeal (and generally bad news for Lewis Libby and other defendants seeking to challenge within-guideline sentences).

UPDATE:  The full 59-page effort is now also at this link.  My printer is working overtime, and I'll likely need a few hours to digest what's here.  Separate posts on each of the four opinions will follow.

June 21, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (19) | TrackBack

Rita is here and...

Lyle Denniston is reporting here at SCOTUSblog that Rita is out and upholds a presumption of reasonableness for within-guideline sentences.  However, the vote count suggests the opinion may be very nuanced.  Here is the first report:

The Supreme Court ruled on Thursday that a federal criminal sentence within the Guidelines may be presumed to be reasonable when the case is on appeal. However, it said that such a presumption is not binding.  Although the Court was divided in some respects, the vote on the result was 8-1 with only Justice David H. Souter dissenting in Rita v. U.S. (06-5754).

A lot more to follow, of course.

MORE:  Here is Lyle's new paragraph describing the main opinion:

In key passages in Justice Stephen G. Breyer's main opinion, the Court said: "A non-binding appellate presumption that a Guidelines sentence is reasonable does not require the sentencing judge to impose that sentence.  Still less does it forbid the sentencing judge from imposing a sentence higher than the Guidelines provide for the jury-determined facts standing alone.  As far as the law is concerned, the judge could disregard the Guidelines and apply the same senence (higher than the statutory minimum or the bottom of the unenhanced Guidelines range) in the absence of the special facts (say, gun brandishing) which, in the view of the sentencing Commission, would warrant a higher sentence within the statutorily permissible range.  Thus, our Sixth Amendment cases do not forbid appellate court use of the presumption."

I am now certain that one of the levels of hell involves trying to figure out what an important SCOTUS ruling says and means before being able to access the opinion itself.

June 21, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (5) | TrackBack

Anticipating Rita reactions

Whenever the Supreme Court hands down a ruling in Rita — and, gosh, I hope it's soon — I will be watching closely reactions from other federal sentencing participants.  Of course, the nature and swiftness of reactions will depend greatly on whether the Court in Rita ratifies the reasonableness status quo for within-guidelines or instead rejiggers the post-Booker landscape.  But, even without seeing the opinion, we can already anticipate how key actors will likely respond:

Of course, all this does not mean the outcome in Rita is inconsequential.  Rather, my main point is to highlight some structural realities that will shape Rita reactions no matter what the ruling.  (Also, adding to these status quo dynamics is the fact that SCOTUS will not drop other reasonableness review shoes until probably 2008 when it eventually rules in Gall and Kimbrough.)

Some recent related posts:

June 21, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (2) | TrackBack

June 20, 2007

The pace of executions picking up

If executions in fact deter homicides, we should all feel extra safe over the next week.  As detailed on this page, a half dozen executions may take place in four different states over the next six days.  If all six of these executions go forward as scheduled, there will have been a total of 29 executions in the US during the first half of 2007.  This would mean that the US will be on pace to have more executions in 2007 than it had in 2006.

Given that California, Florida, Missouri and North Carolina are all still struggling to get on with executions after lethal injection scrummages, it is somewhat remarkable that the pace of executions is remaining pretty steady.  Of course, this all is primarily a story about Texas justice, since the Lone Star State is responsible for nearly 2/3 of all executions so far in 2007.

Some recent related posts:

June 20, 2007 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

The sentencing transcript in Kimbrough

In this prior post, I discussed some of the issues (and linked the cert papers) related to the Supreme Court's cert grant last Monday in Kimbrough v. United States, No. 06-6330, the crack sentencing case.  I have since had a chance to review the transcript fromt the district court sentencing in Kimbrough, which I provide for downloading below.

In an effort to putting aside all the intricate legal issues related to Booker and 3553(a) and guideline provisions, I would like to read comments from folks after they review this transcript on the most basic and essential question: was the sentence given by Judge Raymond Jackson to Derrick Kimbrough on April 15, 2005 reasonable?

Download kimbrough_sentencing_transcript.pdf

Some recent related posts:

June 20, 2007 in Kimbrough reasonableness case | Permalink | Comments (7) | TrackBack

Sixth Circuit affirms below guideline involuntary manslaughter sentence

The Sixth Circuit this morning has two notable sentencing rulings today with US v. Kathman, No. 06-5669 (6th Cir. June 20, 2007) (available here), and US v. Garner, No. 05-4215 (6th Cir. June 20, 2007) (available here).  Garner simply confirms that Booker does not allow a district court to evade application of a statutory mandatory minimum, while Kathman affirms a below-guideline sentence by stressing that "the advisory nature of the guidelines provides greater discretion to the district court" after Booker.

Kathman is the more interesting read, in part because the defendant's crimes of conviction were "two counts of involuntary manslaughter resulting from an automobile accident in a national park that killed his two passengers."   Among many morals to be drawn from Kathman is don't drink and drive.

June 20, 2007 in Booker in the Circuits | Permalink | Comments (5) | TrackBack

June 19, 2007

What are the odds Lewis Libby gets bail pending appeal from the DC Circuit?

This AP article details that Lewis Libby today submitted his application for bail pending appeal to the DC Circuit:

In a motion to the U.S. Court of Appeals for the District of Columbia Circuit, Libby argued that the ruling [denying bail] was inappropriate.  He said he has a good chance of having his conviction overturned on appeal and should not have to serve jail time while the court challenge plays out.

"The Bureau of Prisons will shortly designate a prison facility and direct Libby to report within a period of two to three weeks after designation," his attorneys wrote. "Accordingly, we respectfully ask that the court expedite action on this application."

Any predictions, dear readers, about his chances for getting bail from the DC Circuit?

June 19, 2007 in Libby sentencing | Permalink | Comments (18) | TrackBack

Meet the Beatles ... at sentencing

Thanks to CrimProf, I saw this amusing article, entitled "Judge cites 42 Beatles songs to teach beer thief a lesson," about a recent sentencing with a beat.  Here are the basics:

The judge sentencing a Beatles-loving beer thief quoted 42 of the band's song titles in his verdict.  Andrew McCormack, 20, was asked to recommend to a US court what his sentence should be for stealing beer.  He wrote: "Like the Beetles say, Let It Be."

But his cheeky quip did not impress Gregory Todd, a 56-year-old district court judge in Montana.  In a sentencing memorandum Judge Todd first corrected McCormack's misspelling and then gave the defendant a lesson in The Beatles discography.

June 19, 2007 | Permalink | Comments (0) | TrackBack

For the ailing politician ... Incarcerex

Acf10 Strong and very amusing stuff here coming from the Drug Policy Alliance.  Be sure to check out the Incarcerex video.  (Hat tip: The Real Costs of Prisons Weblog)

June 19, 2007 in Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Staging a violent crime Hamlet without the DOJ prince

As discussed here and here, Representative Bobby Scott, Chairman of the House Subcommittee on Crime, Terrorism and Homeland Security, has planned a "Summit on Crime Policy" for later this week entitled "Violent Crime — Prevention and Solutions from the Experts."  A helpful reader sent me a full list of panels and speakers for this event (which I am calling a "Sentencing Lawapalooza").  The list of speakers can be downloaded below, and here the four planned panels:

Download crime_summit_participants.doc

The list of speakers is amazing; more than three dozen leading voices from a broad array of organizations are slated to sharing their insights at this summit.

And yet, as the title of this post indicates, the list of speakers suggests that a very big dog is not going to bark at the summit.  Missing from the event is any apparent official Justice Department representative.  And this omission is especially notable given that, as detailed in this post, Attorney General Gonzales just earlier this month announced a set of new DOJ initiatives for combating violent crime.

I am generally disinclined to assert that DC is a dysfunctional town.  But it is hard to have too much faith in the ways of Washington if indeed a major crime summit goes forward without serious involvement by the Department of Justice.

June 19, 2007 in Who Sentences | Permalink | Comments (2) | TrackBack

A coming reasonableness clusterf#@k? Ruminations while waiting for Rita

SCOTUS guru Tom Goldstein is now predicting here that Justice Alito is writing the opinion for the Court in Rita, after having previously predicted that Justice Stevens and then that Justice Breyer was in charge of Rita.  I think all of Tom's predictions may be right because, as I wait impatiently for a ruling on reasonableness from the Court, I am now thinking we could get many opinions in Rita.  Let me detail my latest (wholly speculative) ruminations on Rita:

1.  The Sixth Amendment's impact: Given the Court's recent ruling in Cunningham and the affinity shown by Justices Stevens, Scalia and Thomas for the Sixth Amendment jury trial right, there likely will be at least one Rita opinion stressing the impact and import of the Sixth Amendment in post-Booker sentencing.

2.  The SRA's impact: Given the remedial opinion in Booker and the Court's unanimous work a decade ago in Koon, there likely will be at least one Rita opinion stressing the impact and import of the statutory provisions of the Sentencing Reform Act (and especially 3553(a)) in post-Booker sentencing.

3.  The USSC's impact: Given the remedial opinion in Booker and also the the affinity shown by Justices Breyer and Alito for the US Sentencing Commission, there likely will be at least one Rita opinion stressing the impact and import of the guidelines in post-Booker sentencing.

Perhaps one impressively comprehensive opinion for the Court can cover all this ground.  But the disaffinity of Justices Kennedy and Breyer for the Sixth Amendment jury trial right suggests they won't join an opinion praising Blakely's view of jury trial rights.  And the apparent disaffinity of Justice Scalia for the USSC (and for Justice Breyer?) suggests he won't join an opinion praising the guidelines.

Throw into this mix the two new Justices — whose contrasting votes in Cunningham suggest they look at these issues and the Court's recent sentencing jurisprudence quite differently — and we could have a real mess on our hands with perhaps multiple plurality opinions in Rita

Indeed, the Court's cert grants in two new sentencing cases set for argument next term perhaps makes the most sense if the Justices have been struggling with a messy set of opinions in Rita.   Perhaps the Justices realize that their work in Rita will raise as many questions as it answers, and thus they want and will need another big bite at the post-Booker sentencing apple to provide guidance to lower courts still trying to sort through the post-Booker world.

Some recent related posts:

June 19, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (1) | TrackBack

If you enjoy long split capital habeas circuit rulings...

you should be sure to check out today's work by the Sixth Circuit in Cone v. Bell, No. 99-5279 (6th Cir. June 19, 2007) (available here), and yesterday's work by the Seventh Circuit in Stevens v. McBride, No. 05-1442 (7th Cir. June 18, 2007) (available here).

As I have said before, when I read these long capital habeas opinions, I cannot help but wish that federal circuit judges would regularly give as much attention to federal drug offenders directly appealing their long imprisonment sentences as they give to state murderers appealing their death sentences.

June 19, 2007 in Death Penalty Reforms | Permalink | Comments (7) | TrackBack

Another Enron defendant sentenced

As detailed in this AP article, a " key prosecution witnesses whose testimony helped convict former Enron CEO Jeffrey Skilling and company founder Kenneth Lay was sentenced Monday to 27 months in prison."  Here are more details:

It's been nearly three years since Kenneth Rice, 48, the former chief of Enron Corp.'s high-speed Internet unit, pleaded guilty to securities fraud and agreed to help federal prosecutors on other cases related to the energy giant's collapse.  His sentencing was postponed as he cooperated with prosecutors.

Rice becomes the ninth ex-Enron executive to receive a jail term after pleading guilty to crimes.  Before sentencing, Rice apologized for his role in the corporate scandal that wiped out thousands of jobs, more than $60 billion in market value and more than $2 billion in pension plans. "I'm sorry. I wasn't raised that way and I'm ashamed of that," he said, his voice breaking with emotion. "I'm committed to turning my life around."...

Assistant U.S. Attorney Ben Campbell said he was satisfied with the sentence.  He had noted to the court Rice's "candid testimony" in the trial of Skilling and Lay, who were convicted last year for their roles in the company's collapse.  In addition to that testimony, Rice was a key witness for eight days at the trial of five former colleagues at the Internet unit.  Rice also met 63 times with prosecutors.  One of Rice's attorneys, Dan Cogdell, said he had never seen such cooperation by a witness in his 25 years of practicing law.  He said Rice had unquestionably accepted responsibility for his role in the fraud and had cooperated with prosecutors since the start of their investigation.

June 19, 2007 | Permalink | Comments (1) | TrackBack

June 18, 2007

Tenth Circuit approves federal DNA collections from convicts

Like other circuit to have considered the issue, the Tenth Circuit today in Banks vs. United States, No. 06-5068 (10th Cir. June 18, 2007) (available here), rejects a challenge to a federal DNA collection statute.  Here is how the long opinion in Banks begins:

Government collection of deoxyribonucleic acid ("DNA") samples has caused considerable controversy. From State proposals to expand DNA extraction to misdemeanants, to federal DNA statutes designed to assist police in solving crimes, detractors allude to a police state reminiscent of George Orwell's dystopia portrayed in 1984. In this case, the challenged federal statute, The DNA Analysis Backlog Elimination Act of 2000, requires convicted felons to submit a DNA sample for inclusion in a national database.  The database is used for law enforcement identification purposes; in judicial proceedings if otherwise admissible; for criminal-defense purposes; and for a population-statistic database for identification research, or for quality-control purposes, if personallyidentifiable information is removed.

We must decide whether the Fourth Amendment permits compulsory DNA testing of the Plaintiffs, non-violent felony offenders subject to the Act, in the absence of individualized suspicion that they have committed additional crimes.  Applying a totality-of-the-circumstances test, we hold that the Act is constitutional because the Government's interest in extracting DNA from the Plaintiffs outweighs their interests in avoiding the intrusions upon their privacy.

June 18, 2007 in Criminal Sentences Alternatives | Permalink | Comments (1) | TrackBack

New Jersey Supreme Court clarifies Atkins procedures

in Atkins v. Virginia, 536 U.S. 304 (2002), the Supreme Court declared that the Eighth Amendment no longer permitted the execution of persons suffering from mental retardation, but ever so thoughtfully left to the states "the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences."   The sates have been all over the map on this issue, and New Jersey had an interesting follow up ruling today in State v. Jimenez, No. A-75-2006 (NJ June 18, 2007) (available here).  Here is how it starts:

We granted defendant's motion to clarify our opinion in State v. Jimenez, 188 N.J. 390 (2006) (Jimenez II), in which we adopted a framework for adjudicating Atkins claims.  We held that defendant had the burden of proving mental retardation by a preponderance of the evidence to the jury at a hearing after the guilt phase and prior to the penalty phase.  Jimenez II, supra, 188 N.J. at 408.  However, we did not express a view on whether there must be a unanimous jury finding or whether only one juror need reach that conclusion. As a consequence, defendant sought clarification of that issue.  Because the finding of mental retardation is like a dispositive mitigating factor, we hold that if a single juror finds defendant has met his burden of proving mental retardation by a preponderance of the evidence, defendant is not eligible to receive a penalty of death.

Some related posts:

June 18, 2007 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Anyone planning to attend this week's House "Summit on Crime Policy"?

I noted briefly here that Representative Bobby Scott, Chairman of the House Subcommittee on Crime, Terrorism and Homeland Security, has planned a "Summit on Crime Policy" for later this week entitled "Violent Crime — Prevention and Solutions from the Experts."  Thanks to the Sentencing Project, I found this flyer providing more details about the summit.  Here are the particulars:

Summit: 8:30am-1:30pm in 2237 Rayburn House Office Building

Throughout the day, prominent researchers and representatives of leading national crime policy organizations working in developing and shaping crime policy will give brief presentations on their priorities for the 110th Congress.  Topics will include:

  • Post-incarceration reentry
  • Juvenile justice reform
  • Gang violence and prevention
  • Mandatory minimums and sentencing reform
  • Alternatives to the criminal justice system and sentencing
  • Habeas Corpus Reform and Guantanamo Bay
  • Death penalty reform and DNA exoneration
  • Racial profiling and racial aspects of criminal justice policy
  • Law enforcement and the criminal justice system

I would be grateful for reports from the field from anyone planning to attend this interesting sounding "Sentencing Lawapalooza."  And I would be eager to post any prepared testimony or materials that folks might send my way.

June 18, 2007 in Criminal Sentences Alternatives | Permalink | Comments (0) | TrackBack

Ninth Circuit upholds enhancement based on conduct during Nixon Administration

Anyone who thinks the Ninth Circuit is a maverick court that shows undue sympathy to criminal defendants ought to be sure to read its work today in US v. Garner, No. 06-10417 (9th Cir. June 18, 2007) (available here). Here is the opening paragraph:

This appeal tests the temporal and relational limits of prior conduct as a sentencing enhancement.  In it, James Garner ("Garner"), sentenced to 262 months following his guilty plea conviction for two counts of attempted receipt of visual depictions of a minor engaged in sexually explicit conduct and six counts of distribution of visual depictions of a minor engaged in sexually explicit conduct, all in violation of 18 U.S.C. § 2252(a)(2), contends the district court erred by using thirty-five-year-old conduct to enhance his sentence and that his resulting sentence is unreasonable.  We affirm.

June 18, 2007 in Booker in the Circuits | Permalink | Comments (10) | TrackBack

Intriguing capital ruling from New Mexico

The Death Penalty Information Center has an interesting report here on a state court ruling that essentially deems New Mexico's death penalty practices unconstitutional.  Here the DPIC's report:

Ruling in a pre-trial matter in New Mexico, Judge Timothy Garcia of Santa Fe County's First Judicial District Court held the state's death penalty law to be unconstitutional based on a study by the Capital Jury Project.  The Project's research in 14 states had found that jurors often do not follow the law in making their sentencing decision. In particular, the judge found that the jurors' propensity toward making their sentencing decision during the guilt-innocence phase of the trial was "an arbitrary and capricious violation of the United States Constitution and the New Mexico Constitution."

The judge said that he would allow the death penalty trial to go ahead provided separate juries were selected for the guilt-innocence phase and for the sentencing phase, even though that change was not provided for under New Mexico law. The state elected to forgo seeking the death penalty entirely, thereby putting off a legal confrontation on this issue. (New Mexico v. Dominguez and Good, No. D-0101-CR-200400521 and 522, Order, June 8, 2007).

I would be grateful to hear more from readers about this notable ruling (which I've not seen).  Judge Garcia's ruling could have profound national implications if other court's were moved by his insights and conclusion.

UPDATE:  Thanks to Karl at Capital Defense Weekly, you can now read the Dominguez and Good opinions at this link.

June 18, 2007 in Death Penalty Reforms | Permalink | Comments (14) | TrackBack

Still no sentencing from SCOTUS

The always helpful SCOTUSblog has the news on today's rulings from the Supreme Court, though it appears again that there is no sentencing action within today's three opinions and one cert grant.  Criminal justice fans will, however, want to check out the Court's only major Fourth Amendment case that was handed out today.  Here's the early SCOTUSblog report:

[T]he Court ruled in Brendlin v. California (06-8120) that a passenger in a car stopped on the road by a police officer has a right to challenge the legality of the stop, under the Fourth Amendment. The Court was unanimous, with Justice David H. Souter writing.

I believe the next decision day is this Thursday (June 21), and the Justices have only about a dozen cases left to resolve.  By Thursday, my own personal Rita-meter might indicate that the odds of a ruling are now getting very high, although one never knows.  (I have some more speculations about what might be going on in Rita, which I'll share in the days ahead.)

UPDATE:  Lyle Denniston's fuller report on today's SCOTUS action now notes these two notable cert denials in capital cases:

Among cases denied review on Monday was Barbour v. Allen (06-10605), a case testing whether a state has a constitutional duty to provide legal aid to poor inmates on death row, to help them challenge convictions and sentences in state court after the verdict is final....

The Court also declined to return -- for the ninth time -- to a review of the death penalty procedures that Texas actually stopped using in 1991. The case was Quarterman v. Nelson (06-1254), in which the Fifth Circuit Court essentially cast aside much of its modern jurisprudence on the role that mitigating evidence must be allowed to have in capital sentencing proceedings.

June 18, 2007 in Who Sentences | Permalink | Comments (5) | TrackBack

Costs cause states to pursue prison alternatives

7994_prisonbars This new article from Stateline.org, entitled " States seek alternatives to more prisons," highlights how prison overcrowding problems across the country are creating the necessity to invent new types of responses to crime.  Here are excerpts from the article (which includes a cool graphic reflecting this detailed analysis of state-by-state increases in corrections costs):

With swelling prison populations cutting into state budgets, lawmakers are exploring ways to ease overcrowding beyond building expensive new correctional facilities. Though the construction of prisons continues as states struggle to provide enough beds for those behind bars, legislators increasingly are looking at other ways to free up space and save money, including expanded programs to help prevent offenders from being incarcerated again, earlier release dates for low-risk inmates and sentencing revisions.

Criminal justice analysts point to Kansas and Texas as recent innovators. Both states are putting off building new prisons, focusing instead on rehabilitation and recidivism. At the same time, a new $7.7 billion prison spending plan in California — where overcrowding last year forced Gov. Arnold Schwarzenegger (R) to declare a state of emergency — has met with skepticism.  Critics call the plan "prison expansion, not prison reform" and say the initiative relies on impractical fixes such as shipping inmates out of state.

State spending on prisons surged 10 percent nationally last fiscal year (see graphic) and growing inmate populations played a lead role in those costs, according to an analysis by the National Conference of State Legislatures. Corrections trails only education and health care in swallowing state dollars, and experts say lawmakers are responding to the budgetary pressures by trying more cost-effective approaches.

Some related posts:

June 18, 2007 in Criminal Sentences Alternatives, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

June 17, 2007

Might Congress move ahead with sound sentencing reforms?

In the two-plus years since Booker, Congress has been remarkable quiet on the sentencing front.  Though there have been proposals for large and small sentencing reform from all quarters, Congress has shown relatively little interest in radically changing (or even seriously studying) post-Booker sentencing realities.

As documented here and here at FAMM, however, some members of Congress now appear interested in exploring possible sentencing reforms.  Specifically, later this month brings these two notable congressional events (as described by FAMM):

June 17, 2007 in Legislative Reactions to Booker and Blakely, Who Sentences | Permalink | Comments (2) | TrackBack