Sentencing Law and Policy

Bowman Sorts the Rita/Claiborne Arguments

[Posted by Ron Wright]

Just in time for the oral arguments in Claiborne and Rita, Frank Bowman has drafted a reader's guide to the briefs of the parties and amici in the cases. His intelligent critiques of the briefs and suggestions for the best ordering of affairs in Blakely-land could make a real difference in crafting a new path forward. The essay will be published later this year in the Federal Sentencing Reporter, but this preliminary version is available at the link below. 

Download bowmanthe_question_is_which_is_to_be_master217.doc

CNN with additional coverage of Genarlow Wilson case

I am told by a knowledgeable source that CNN is back on the Genarlow Wilson case (background here and here).  I was pleased to see all the attention this remrkable case received last month (including from CNN), but it seemed criticisms had started to die down.  Here's hoping a new round of coverage will bring a new hope for justice for Wilson.

Some recent related posts:

• Will the Georgia legislature help Genarlow Wilson get justice?
• CNN covers Genarlow Wilson case, who's next?
• ESPN effectively covers Genarlow Wilson's sad saga
• Why isn't the severe Georgia sentence constitutionally problematic?
• Provocative questions about Georgia sentencing injustice
• The nuance in my provocation
• Another editorial urging release of Genarlow Wilson
• NYT adds to chorus calling for Genarlow Wilson to be freed
• Two (feminist?) perspectives on the Wilson case

More strong analysis of Cunningham opinions

Vik Amar, writing this time with his colleague Aaron Rappaport, has at FindLaw this great second commentary on Cunningham.  The first one (available here) was entitled "The Supreme Court Invalidates California's 'Determinate Sentencing' Law."   This second piece has the title, "Justice Alito's Dissent in Cunningham v. California: How Can Someone So Wrong, Be So Right?" and here is its set up:

One of the most interesting features of Cunningham was Justice Alito's intricate dissenting opinion, which was also joined by Justices Kennedy and Breyer.  As one of Justice Alito's first opinions in this controversial area of criminal constitutional law — and one of his most prominent opinions to date more generally — his writing deserves careful study. Particularly interesting is how his dissent highlights and explores one of the great puzzles emerging from this line of cases: When, and why, does the exercise of judicial discretion at sentencing violate the Sixth Amendment?

Quick reading list for a long weekend

As Ron notes, I'm away and generally off-line for a long weekend.  So Ron will help out with insightful posts, while I'll be providing mostly cut-and-paste content when able to get on-line.  For example, here are highlights from a SmartCILP e-mail with lots of notable new published pieces on sentencing-related issues:

• Beale, Sara Sun. The news media's influence on criminal justice policy: how market-driven news promotes punitiveness. 48 Wm. & Mary L. Rev. 397-481 (2006)

• Beschle, Donald L. Cognitive dissonance revisited: Roper v. Simmons and the issue of adolescent decision-making competence. 52 Wayne L. Rev. 1-42 (2006)

• Cafaro, Tina Wescott. You drink, you drive, you lose: or do you? 42 Gonz. L. Rev. 1-28 (2006/07)

• Coleman, Brady. Shame, rage and freedom of speech: should the United States adopt European "mobbing" laws? 35 Ga. J. Int'l & Comp. L. 53-98 (2006)

• Kellar, Amanda M. Note. They're just kids: does incarcerating juveniles with adults violate the Eighth Amendment? 40 Suffolk U. L. Rev. 155-179 (2006)

• Keuten, Matthew. Note. A categorical failure: explaining why the federal courts cannot uniformly decide whether the charge of being a felon in possession is a "crime of violence" under the Bail Reform Act. 52 Wayne L. Rev. 263-284 (2006)

• King, Andrew. Comment. What the Supreme Court isn't saying about federalism, the Ninth Amendment, and medical marijuana. (Gonzales v. Raich, 125 S. Ct. 2195, 2005.) 59 Ark. L. Rev. 755-779 (2006)

• Meekins, Tamar M. "Specialized justice": the over-emergence of specialty courts and the threat of a new criminal defense paradigm. 40 Suffolk U. L. Rev. 1-55 (2006)

• Vannella, Daniel M. Note. Let the jury do the waive: how Appendi v. New Jersey applies to juvenile transfer proceedings. (Apprendi v. New Jersey, 530 U.S. 466, 2000.) 48 Wm. & Mary L. Rev. 723-770 (2006)

The Pew Index Strategy

[Posted by Ron Wright]

Doug is away for a few days. He'll be checking in now and then from the road, but while he's away I'll be feeding the dogs, watering the plants, musing once or twice on the SLP Blog ...

Recent SLP posts (here and here) have touched on the recent past work of the Pew Charitable Trusts. I want to highlight the future work of the Pew Public Safety Performance Project -- looking up to the front Pew, rather than looking behind to the back Pew (sorry, I'm just trying to invoke Doug's spirit of fun here).  As you can see from this description of the project, Pew's emphasis is on promoting effective sentencing practices for states, without looking directly at the federal system.

The distinctive Pew technique for promoting good practices is to create a "report card" or an "index" to offer state officials an accessible way to compare their efforts to what happens in other states. They sort through features of state systems, reduce them to a single number or score, and compare states. Pew already uses this technique in areas such as higher education.

It's an interesting affirmation of democracy, isn't it? While it is tempting to call for the "politicians" to leave sentencing questions to the experts, the Pew strategy instead is to make expertise more populist. The report cards, to be sure, simplify some things and therefore distort to some degree. But if the rankings are done well, they focus policymakers on relevant measures and take advantage of a natural competitive spirit.

So here's my question for the large and informed readership of the SLP Blog: What data points about a state sentencing system might be (1) measurable with comparable numbers across many state systems, and (2) tell us something worthwhile about the systems, something worth ranking and changing? 

A lethal injection roadtrip

This Reuters article details an interesting work trip being taken by California officials:

California penal officials are traveling nationwide to confer with experts to overcome a federal judge's objections to its execution procedure, the state's top prison official said on Thursday....  "I have people on my staff who are traveling around the country assessing our policies and procedures and what changes need to be made to be compliant with the court," James Tilton, secretary of the California Department of Corrections and Rehabilitation, said in an interview.  The courts "have indicated that they think there are improvements that can be made to pass the constitutionality and we are confident that we can do that now," he continued.  "By looking around the country we are think that we can provide some improvements to our process that will be compliant."

Around the blogosphere

Lots of new interesting sentencing posts at some classic locales:

• Crime and Consequences
• Corrections Sentencing
• Ohio Death Penalty Information
• Sex Crimes

Also, I just found a relatively new blog, Extra Credit, by Georgetown law prof James Forman Jr., which has a few strong posts on race and criminal justice.  I was particularly interested in the questions Forman raised in this post (which I have been asking for a long time):

• Why isn't there a greater national outcry over the incarceration statistics — if we knew 50 years ago that African-Americans were going to make progress in virtually every domain, but incarceration rates were going to get dramatically worse, wouldn't we have predicted that the mass incarceration of blacks would be the lead issue for the civil rights community, concerned citizens, and progressives everywhere?
• Shouldn't conservatives and centrists care a lot about this issue — after all, these prisons are hugely expensive, drain resources and raise taxes.

An interesting call for capital papers

I am pleased to pass along this announcement from the Justice System Journal calling for paper for an upcoming issue on capital punishment.  Here's the start of the pitch:

The Justice System Journal, sponsored by the National Center for State Courts, will be publishing a special issue on aspects of capital punishment; the likely publication date is late 2008.  The journal's editors would be interested in receiving proposals — from academics and practitioners alike — for possible articles for that special issue.  A list of possible topics appears below; most relate to courts and actors in the courts, but suggestions for other topics will be considered.  The journal does not publish normative or philosophical work or extended analyses of case law.  There are no restrictions on the types of methodology used, but use of elaborate statistics in the final articles is discouraged. Prospective authors are reminded that, although academics read the Justice System Journal, the journal's primary audience is court administrators and other court practitioners.

The first statement from Justice Kennedy's sentencing testimony

I mentioned in this post that there was an extraordinary exchange between Justice Kennedy and members of the Senate Judiciary Committee on sentencing issues during Justice Kennedy's testimony before the Committee yesterday.  (This exchange has gone mostly unreported, except by Jan Crawford Greenburg here).  After watching the video again, I though I would flag (and put in bold) Justice Kennedy's very first statement: "I am not comfortable with anything in the federal correctional system and with our sentencing policy."

As noted here, the Claiborne and Rita cases to be argued next week have a lot to do with the "the federal correctional system and with our sentencing policy" beyond just Sixth Amendment issues.  Thus, as with so many other cases, Justice Kennedy is clearly a key voice and vote to watch in Claiborne and Rita.

It is also interesting to speculate how some of Justice Kennedy's other comments might color his cert vote in a case like Berger, in which a first offender is challenging a 200-year prison sentence for possessing child pornography as a violation of the Eighth Amendment (details here).  Back in 1991, Justice Kennedy wrote the key plurality opinion in Harmelin that has largely ensured the Eighth Amendment now provide little or no limit on the length of non-capital sentencing terms.  I wonder if Justice Kennedy might be inclined to take up Berger to provide a 21st century spin on the doctrine.

The Cunningham fog in California

This article from California, entitled "Courts in fog on sentencing after overturning of law," provides more details on post-Cunningham sentencing struggles is the national largest criminal justice system:

The U.S. Supreme Court decision that overturned California's sentencing law has left judges and lawyers across the state waiting for legislators to fill the legal vacuum left by last month's ruling.... Lawyers are already turning to appellate courts for guidance. A Riverside County district attorney's petition filed this week with the 4th District Court of Appeal asked the court to "give direction to the Riverside County trial courts" in the absence of a new sentencing law.

In the Legislature, the ball is rolling slowly. The state Senate approved a bill Tuesday to square California's Determinate Sentencing Law with the Supreme Court. The Inland delegation voted for the bill, which goes to the Assembly sometime next week....  Legal experts, the state attorney general's office and other observers predicted that thousands of inmates would appeal their upper-term sentences after the U.S. Supreme Court ruling.  But the first-wave effect from Cunningham deals with new cases, not old ones.

Without word from the Legislature or state high court, prosecutors and defense lawyers are at odds about how aggravating factors may be determined in the future, other than the certainty that a judge is out as the lone fact-finder.  Prosecutors want to make aggravating factors part of the official court record so a jury can consider them, once the issue is resolved. "We are reserving the right to seek an aggravated term," explained San Bernardino County Assistant District Attorney Michael Risley.  Defense attorneys are challenging the efforts during arraignments, saying the absence of a law clarifying the sentencing rules makes aggravation claims pointless. 

Recent related posts:

• The continuing Cunningham fallout
• California's Cunningham fix moving forward
• California Supreme Court to start Cunningham clean-up
• A Cunningham fix in California

The devil's in the details of GPS tracking of sex offenders

This AP article from Wisconsin highlights some administrative realities and challenges of a new law calling for tracking sex offenders after release using GPS systems.  Here are snippets:

Electronic tracking for Wisconsin's worst sex offenders — required under a law signed by Gov. Jim Doyle less than a year ago — would be dramatically scaled back under his two-year budget proposal. Doyle's budget, unveiled to lawmakers Tuesday night, would require child molesters and sexually violent offenders to wear global positioning bracelets only while they're on supervised release or parole.  That's a significant step back from the law Doyle, a Democrat, signed in May to set up GPS tracking until the offender died or was too feeble to pose a threat.

The Republican-sponsored law is due to take effect in July.  State Rep. Scott Suder, R-Abbotsford, its main author, said he was shocked at Doyle's changes.  He accused the governor of going back on his word. "This, in essence, takes away most of our ability to track these monsters. I'm left with my jaw wide open," Suder said Wednesday. "He signed the bill. He highlighted the bill throughout his campaign. Now he is nothing short of gutting the bill. I find it appalling."...

Doyle hailed the measure the day he signed it, saying it would help police know where offenders are at any moment. But questions have lingered about both the law's constitutionality and cost.  Three University of Wisconsin-Madison law professors issued an opinion earlier this month saying the law is unconstitutional because it amounts to extra punishment and the government can't submit someone no longer under its supervision to tracking.  The Corrections Department requested about $24 million and nearly 235 new positions to implement the law over the next two years. Doyle's budget proposal cuts the funding to $11 million and 122 positions.

Some related posts:

• Is GPS tracking a better way?
• More on the pros and cons of GPS tracking

Justice Kennedy lectures the Senate on sentencing realities

In this recent post, I suggested that Justice Kennedy's view on Claiborne and Rita might be impacted by his concerns about the severity of federal guideline sentences.  Consequently, I was very intrigued to see Jan Crawford Greenburg reporting here on an extraordinary exchange between Justice Kennedy and members of the Senate Judiciary Committee on sentencing issues during Justice Kennedy's testimony before the Committee yesterday.

Fortunately, not only can everyone check out Jan's great post, you can also watch the exchange on video at this link.  The exchange come late in a two-hour session of testimony, a little after the 1:30 mark.  The exchange starts when  when Senator Sheldon Whitehouse, a Democratic senator from Rhode Island new to the Judiciary Committee, asked Justice Kennedy about whether he thought, after Blakely and Booker, there is now an ideal balance between uniform sentencing rules and judicial discretion in the federal system.  Justice Kennedy's fascinating reaction to this question cannot be readily summarized; it makes for a riveting 10 minutes that just must be watched by all sentencing fans.

The death of death may be greatly exaggerated

This article from the Baltimore Sun highlights why, despite lots of attacks on the administration of the death penalty, legislative repeal the death penalty is never easy:

A proposed repeal of the death penalty in Maryland, which seemed to gain momentum when Gov. Martin O'Malley said he would sign a bill, appears headed for defeat in a key Senate committee.  "I think it's an uphill battle either in committee or on the Senate floor," said Sen. Brian E. Frosh, a Montgomery County Democrat and chairman of the Senate Judicial Proceedings Committee, which will take up the measure Wednesday.

Another view of viewing an execution

As detailed here and here and here, some weeks ago the aesthetics of the death penalty in general and the swiftness of the Saddam execution in particular generated a lot of interesting debate.  Against that backdrop, folks interested in execution procedures in particular and the death penalty in general ought to check out this article now available on-line from the California Lawyer. 

The article is entitled simply, "Witness to an Execution," and is authored by James Ardaiz, who is now the administrative presiding justice of the Fifth District Court of Appeal in Fresno.  Judge Ardaiz describes his experience attending the 2006 execution of Clarence Ray Allen, whom Ardaiz prosecuted back in 1977.  Here is one of many moving passages:

Allen's appeal and writ process had taken more years than the life spans of all but one of his victims. He had outlived the parents of some of the victims.  What of the surviving parents who were too infirm to witness his punishment?  What was the toll of their suffering through their long years of waiting?  Much of the publicity in the last few weeks had been about public and legal reaction concerning executing such an aged inmate.  I thought about the fact that, in the end, Allen's health was better than that of the parents of the victims. Where was the outrage at that?

As I looked at the people walking out of the witness room behind me, I saw that Allen had left a long trail of victims behind, and many of them were here walking along silently.  For most of them I don't think it was over.  I don't think it will ever be over.  But there is one thing I know for sure: The length of time that all of this took added a layer of pain to what these people endured.  And that was wrong.

Could Libby's decision not to testify now result in an obstruction-of-justice enhancement?

After seeing this AP article about today's developments in the trial of Lewis Libby, I can't help spotting an interesting potential sentencing issue.  Here is the background:

Defense attorneys misled the court into thinking that former White House aide I. Lewis "Scooter" Libby would testify in his CIA leak trial, a federal judge said Wednesday, as he blocked Libby from using some classified evidence in the case....

When defense attorneys abruptly announced Wednesday that Libby no longer planned to testify, ... Fitzgerald said that jurors hearing the case therefore should not be given a prewritten statement about Libby's briefings.  US District Judge Reggie Walton agreed, and reversed an earlier ruling that the evidence could be admitted. "My absolute understanding was that Mr. Libby was going to testify," the judge said. "My ruling was based on the fact that he was going to testify."

Walton appeared upset and seemed to stake his reputation on the decision.  Libby's attorneys indicated they would appeal the decision if Libby is convicted.  "If that's what the Supreme Court is going to say (in any ruling on an appeal), they might as well say the government's not entitled to a fair trial and the defendant is," Walton said. "I think both sides are entitled to a fair trial. If I get reversed on that, maybe I need to hang up my spurs."

Beyond the general worry about upseting the judge who'll sentence after any conviction, the Libby defense team perhaps also should ponder whether the sentencing enhancement of USSG § 3C1.1 ("Obstructing or Impeding the Administration of Justice") might now be applicable if Judge Walton now believes he was willfully misled.  The great irony here, of course, is that the guidelines' obstruction enhancement is often applied when a federal defendant decided to testify, asserts innocence, but still gets convicted.  Here, it seems, Libby maybe could be stung with an obstruction enhancement for the way he decided not to testify.

Revving up for Claiborne and Rita: sentencing law in four dimensions

With less than a week until the SCOTUS oral argument in Claiborne and Rita, I now see these cases as so interesting because of how four sources of multi-dimensional sentencing law and policy intersect.  Let me explain:

1.  Constitutional Law:  Booker struck down the mandatory federal sentencing system on Sixth Amendment grounds, but then set out a remedy that seems to undermine Sixth Amendment principles.  As highlighted in posts here and here, the recent Cunningham decision suggests that Claiborne and Rita could have important Sixth Amendment dimensions.  Moreover, as stressed here and by the Third Circuit's work in Grier, there are also important sentencing due process issues lurking after Blakely and Booker.

2.  Statutory Law:  The Booker remedy was premised on Congress's legislative intent when passing the Sentencing Reform Act (SRA), and it championed the statutory instructions to sentencing judges in 18 U.S.C. § 3553(a) as the controlling law for both district judges at sentencing and circuit judges reviewing sentences.  But the Booker remedy did not say much about the "multiple and vague" factors set out in 3553(a).  And, as suggested here and here, lower courts have struggled greatly to make sense of the express text of the SRA and the perceived goals of federal sentencing reform.   

3.  Administrative Law:  The US Sentencing Commission is an administrative body and the guidelines are a form of administrative law.  But the Mistretta case showcased that the USSC and the guidelines are not easily fit into standard administrative law models.  Some post-Booker lower court rulings have emphasized the importance of the guidelines as the product of an expert agency, and yet traditional administrative law doctrines like Chevron have never really been brought to bear in the context of federal sentencing.

4.  Common (or Case) Law: Formally, Claiborne and Rita are assessing the reasonableness standard of appellate review that was created out of whole-cloth by Justice Breyer in the Booker remedy opinion.  There is no obvious constitutional, statutory or administrative law tether or guideposts for the application of this standard (which in part explains why the guideline have been so central to circuit rulings).  Also lacking any obvious legal source are the circuit doctrines concerning the "presumption of reasonableness" at issue in Rita and the "proportionality doctrine" at issue in Claiborne. 

Adding to the intrigue, of course, is that these sources of sentencing law overlap and connect in various ways.  As in Mistretta and Jones, constitutional avoidance doctrines might push the Court to adopt a particular view and interpretation of applicable statutes; as in Koon and Watts, the Court might interpret the Constitution and the SRA to enhance the power of the USSC as an adminstative agency while undercutting the development of common-law doctrines by circuit courts.

In addition, various Justices have interesting histories with the various sources of law in the context of federal sentencing jurisprudence:

• Justice Breyer, who helped draft the SRA and was an original member of the USSC, obviously has a unique perspective on (and perhaps an unhealthy affinity for) the SRA and the guidelines.
• Justice Scalia, who was the lone dissenter from the Supreme Court's initial blessing of the SRA in Mistretta, also has a unique perspective on (and perhaps an unhealthy disaffinity for) the SRA and the guidelines. 
• Justice Kennedy, who authored the unanimous opinion in Koon which asserts (perhaps inaccurately) that Congress in the SRA sought to ensure "that district courts retain much of their traditional sentencing discretion,"  has delivered numerous potent speeches lamenting the severity of federal guideline sentences (examples here and here).
• The new Justices are the yin and yang on federal sentencing law and policy: as detailed in this post, former federal prosecutor (and FSR author) Justice Alito had lots of exposure to federal sentencing realities on the Third Circuit and through his involvement (until his SCOTUS nomination) with the Constitution Project's Sentencing Initiative; former civil lawyer CJ Roberts comes at these issues without much history and he may be far more interested in achieving consensus among the Justices than in achieving any particular outcome.

And, of course, Claiborne and Rita puts all these elements into the awlways-bubbling soup of modern debates over the Court's role in law and politics.  Consequently, I thik the only really safe prediction about to the final product in Claiborne and Rita is that the decisions will be (like the Blakely and Booker precursors) unpredictable.

Potent prison projections from Pew

As detailed in this press release, The Pew Charitable Trusts today released an important new report entitled "Public Safety, Public Spending: Forecasting America's Prison Population 2007-2011.  The press release has this description of the reader-friendly report (which is available here):

By 2011 one in every 178 U.S. residents will live in prison, according to a new report released today by the Public Safety Performance Project of The Pew Charitable Trusts.  Public Safety, Public Spending: Forecasting America’s Prison Population 2007-2011 projects that by 2011 America will have more than 1.7 million men and women in prison, an increase of more than 192,000 from 2006. That increase could cost taxpayers as much as $27.5 billion over the next five years beyond what they currently spend on prisons.

"As states continue to struggle with tight budgets and competing priorities among health, education and safety, they are beginning to question whether huge additional investments in prisons are the most effective and economical way of combating crime," said Susan Urahn, Managing Director of State Policy Initiatives at The Pew Charitable Trusts.  "The challenge for state policy makers is to ensure that taxpayers are getting a strong return on their investment in corrections: safer communities, efficient use of public dollars, and ex-offenders who become productive, law-abiding members of society."

Some recent related posts:

• I heart the Pew Charitable Trusts
• Important new Vera report on "Reconsidering Incarceration"
• Resisting the call for more prison spending
• "Justice Reinvestment" in Texas
• An amazing cartoon on modern prison realities
• The profits in prisons

California's Cunningham fix moving forward

As detailed in this AP report, a proposed legislative response to the Supreme Court's Cunningham decision is moving forward in the California legislature.  Here are some specifics:

Judges would get more discretion to sentence criminals under a bill passed Tuesday by the state Senate in response to a recent U.S. Supreme Court decision.  The court invalidated California's current law because it requires judges to choose the middle of three sentencing options unless the facts of a particular case justify a shorter or longer prison sentence. By law, many of the factors judges weigh in that decision are never considered by jurors.  The justices said it is unconstitutional to increase a sentence based on facts that were not found true by a jury.

The Senate bill, sent to the Assembly on a 36-1 vote, would end the problem by giving judges the discretion to choose any sentence within a range set by law for a particular crime.... The lone opponent, Sen. Tom McClintock, R-Thousand Oaks, said sentences should be set by a jury, not a judge as under [Senator Gloria] Romero's bill.

I find it interesting that there was a voice — but only one — urging a jury-based legislative response to Cunningham.

Going tough on repeat offenders in Colorado

Following up the theme of prosecutorial (in)discretion, a helpful reader sent me this link to a very interesting (and very long) article discussing a Colorado DA's decision to greatly expand the application of habitual offender charges.  The article's title, "The Punisher: Censured but defiant, Carol Chambers goes after habitual criminals — and cops, judges and lawyers — like no other district attorney. But at what cost?", provide a good summary of its coverage.

Still hoping for more Cunningham coverage

As noted here, the Texas Law Review has joined the club of leading law reviews with an on-line companion.  This one is called "See Also," and it has in the works some commentary about the Confrontation Clause.

As I explained in this post a few weeks ago, all the major journals with on-line companions  would seem perfectly suited to foster and facilitate a quick blast of much-needed Cunningham analysis and commentary from scholars and practitioners.  To date, I have not heard any news about special Cunningham coverage in the works anywhere, which could lead me to jump on the nascent anti-supplement bandwagon.

Some related posts from other blogs:

• On-line law review companions: too much of a good thing? (from LSI)
• Five Tips for Law Review Online Supplements (from First Movers)

Examining capital prosecutorial discretion

Sophisticated sentencing fans realize that some of the most interesting and dynamic issues revolve around the exercise of prosecutorial authority and discretion.  (For a few recent examples, consider the recent Cassell opinion or  border agents case or the Genarlow Wilson case or the capital craziness in Arizona.)  This is especially true in the context of the modern application of the death penalty in the United States.

Consequently, I am very pleased to be participating in an exciting conference co-sponsored by Saint Louis University and Washington University School of Law entitled "Life and Death Decisions: Prosecutorial Discretion and Capital Punishment in Missouri."  The conference takes place on Friday, March 2, 2007, and this webpage provides more details (including a schedule and participant list).

As this overview details, at the conference "scholars will present the results of a study of 1044 homicide cases in Missouri," which shows that local prosecutors "made the majority of [capital sentencing] decisions in the exercise of prosecutorial discretion."  The data from the study "suggest that there are significant disparities across counties in the ways that prosecutors exercise their discretion" and the conference is designed to "examine the data and consider policy options for promoting greater consistency across counties in the implementation of capital punishment."

Any early reports on Eighth Circuit argument on faith-based prisons?

As noted here and here, major litigation from Iowa concerning a faith-based prison program was up for oral argument before the Eighth Circuit today.  Adding to the intrigue, retired  Supreme Court Justice Sandra Day O'Connor is on the panel hearing the arguments (and perhaps can be expected to write the eventual opinion in the case).

Though I am hoping to see MSM coverage about the argument soon, perhaps a reader might have been in attendance and can provide a field report. 

Recent posts on faith-based prison programming:

• Considering faith-based corrections programming
• Interesting Ohio report on correctional faith-based initiatives
• The virtues of faith-based prisons
• Interesting examination of faith-based prison movement

UPDATE:  Here is an interesting early press account of the arguments.  This passage caught my eye:

Each side received 30 minutes in which to make its case to the panel with the three judges interrupting frequently with questions.  O'Connor cut off retired Iowa deputy attorney general, Gordon Allen, about 15 seconds into his argument to ask about recidivism rates in Iowa and in other states.  Allen said that if the panel upheld the district court's decision, it would cause "a chilling effect" for future faith-based prison programs.

Judge Duane Benton cited a 150-inmate waiting list to get into the Iowa program and asked Americans United attorney Alex Luchenitser if that and the program's success in rehabilitating prisoners didn't illustrate some value.  "It illustrates some value for the inmates of one religion," said Luchenitser. "But there is harm against other inmates, and when you take that into account, I don’t think there is a value" to the program.

MORE: The always amazing Howard Bashman has a great collection of coverage of the oral argument (and a link to the audio file) here.

DC Circuit thoughtfully weighs in on crack sentencing after Booker

While it's snowy and cold in Ohio, today the DC Circuit adds some more heat to the Booker world with thoughtful and nuanced work on crack sentencing in US v. Pickett, No. 05-3179 (DC Cir. Feb. 13, 2007) (available here).  There is a lot in Pickett that merits highlighting, but this paragraph may be my favorite and the most important aspect of the decision (and not just for crack cases, but for all cases):

While Booker and § 3553(a) instruct sentencing courts to consider all these "multiple and vague" factors, United States v. Johnson, 471 F.3d 764, 764 (7th Cir. 2006), neither the Supreme Court nor the statute assigns any weight or ranking to the factors.  So how is a court to determine how much influence the factor we are concerned with — the advisory-only Guideline range — should have in sentencing a particular defendant?   One might answer that the Guideline range should be considered presumptively reasonable.  But that would be to confuse the standard this court and several others have adopted for appellate review with the standard to be applied by the sentencing court. A sentencing judge cannot simply presume that a Guidelines sentence is the correct sentence.  To do so would be to take a large step in the direction of returning to the pre-Booker regime.  Another approach, the correct one in our view, is to evaluate how well the applicable Guideline effectuates the purposes of sentencing enumerated in § 3553(a).

I will have more commentary on this important ruling after I have a chance to take it all in (and finish shoveling my driveway).

UPDATE:  For many reasons, Pickett is a joy to read.  Unlike other circuits that have swallowed wholesale the government's arguments for requiring district courts to attend slavishly to the crack guidelines, Pickett exposes the many flaws in an approach to post-Booker sentencing that does not take seriously the US Sentencing Commission's own forceful criticisms of the unduly harsh crack sentences.  And the timing is great, since these issues are implicitly — if not explicitly — before the Supreme Court next week in Claiborne.

Still more buzzing about border agents sentence

As the buzzing continues about border agents case (background here and here), I am pleased to see a more refined focus on the exercise of prosecutorial discretion and the severity of the sentences received by Border Patrol Agents Jose Alonso Compean and Ignacio Ramos. 

As noted in this recent post, Senator Dianne Feinstein last week wrote various public letters (available here) in which she expressed her concern that "the sentences in this case are too extreme."  It is heartening to see Senator Feinstein asking AG Alberto Gonzales tough questions about the the exercise of prosecutorial discretion and the pursuit of enhanced sentences in this case.

Similarly, Debra Saunders now has this commentary in which she zeroes in on the sentencing unfairness that resulted from how prosecutorial discretion was exercised:

[U.S. Attorney Johnny] Sutton can point to inconsistencies in Ramos' and Compean's stories.  He is right to argue that law enforcement officials cannot be allowed to shoot at unarmed suspects or lie about what they do. 

For his part, Mr. Sutton offered both agents a plea bargain with a one-year sentence.  But at trial, the U.S. Probation Office [sic] sought 20-year sentences.  Prosecutors can argue that terms are stiff because of federal mandatory minimum sentences for crimes committed with guns, but it was Mr. Sutton's choice to throw the book at the agents -- charging them for assault with a dangerous weapon, obstructing justice, lying about the incident and willfully violating Aldrete-Davila's Fourth Amendment right to be free from illegal seizure -- as well attempted murder, for which they were acquitted.  That's a long sheet for acts begun in the heat of pursuit.

Some recent related posts:

• Senator Feinstein jumps into border agent case
• The furor over border agents' long sentences
• Friday forum: rate the injustices
• A valuable (but disconcerting) perspective on the border case
• Equal justice or just the realities of ratting out?
• Using the border agent case as a catalyst for federal sentencing reform
• Harsh border agent sentences producing half-truths

Thoughtful reflection on Skilling sentence

Thanks to Stuart Taylor's amazing commentary in The National Journal yesterday (discussed here), I discovered that Frank Bowman has this terrific piece in The American Lawyer providing reflections on the federal sentencing of Jeff Skilling and other white-collar offenders.  Frank's piece is entitled "Sacrificial Felon: Life sentences for marquee white-collar criminals don't make sense."  Here is one of many notable insights:

[T]he fate of [Skilling, Bernie Ebbers and John Rigas] leaves me certain of one fact:  The rules governing high-end federal white-collar sentences are now completely untethered from both criminal law theory and simple common sense.

More mile-high Booker insights

Last year the Denver University Law Review published Judge Michael McConnell's great insights on "The Booker Mess" (discussed here).   Now I have learned that another insightful Booker piece is in the works at the DULR in the form of a forthcoming law review comment from student Jeff Hurd, entitled "Federal Sentencing and the Uncertain Future of Reasonableness Review."  Jeff kindly arrange for advance posting in this space, and the piece can be downloaded below.  The comment laments the circuit courts' guideline-centric approach to reasonableness review since Booker (which is termed "Booker minimalism"), and provide another nice and valuable read as folks rev up for next week's oral arguments in Claiborne and Rita.

Download hurd_du_law_vol.84.3.pdf

What are the odds of a cert grant in Berger?

Though my SCOTUS sentencing quota was hit by the cert grants in Claiborne and Rita, I am very pleased to see from SCOTUSblog here that the Berger case made on their "petitions to watch" for the Justices' Conference on Friday.  For a number of both simple and complicated reasons, I think the Berger case — in which a former Phoenix high school teacher claims that his 200-year prison sentence for possessing child pornography violated the Eighth Amendment (basics here, commentary here) — presents a terrific and perhaps rare opportunity for the Court (and its new Justices) to examine and refine its confusing non-capital Eighth Amendment jurisprudence.

Here is a line from the Reply Brief in Berger that nicely highlights one of many reasons why recent developments suggest the time might be ripe for SCOTUS to wade back into this part of the constitutional sentencing universe:

The Court's Eighth Amendment opinions have never expressly considered how the Amendment is to be applied when mandatory minimum sentences are required to be served consecutively, and lower court decisions are in substantial disarray.  Review at this time is especially appropriate in view of the sharply increasing use by Congress and the State legislatures of mandatory minimum sentences, coupled with consecutive sentence requirements.

Some related Berger posts:

• CJ Roberts and sentencing law: fixing Eighth Amendment jurisprudence?
• Might Berger get SCOTUS attention?
• Arizona Supreme Court upholds 200-year sentence for possessing child porn
• What ever happened to state constitutional law, textualism, and libertarianism?
• Liberty versus security in the war on ... sex offenders

Reply briefs filed in Claiborne and Rita

With now just a week to go before the SCOTUS oral argument Claiborne and Rita, the final official piece of the briefing puzzle was filed in today as the defendants filed thier reply briefs.  Thanks to this page at the Office of Defender Services, you can access the reply brief for Mario Claiborne here and the reply brief for Victor Rita here.  The Rita reply gets off to this flying start:

The presumption of reasonableness is a legal fiction. It is based not on the objective language of the Sentencing Reform Act ("SRA"), but on a subjective preference for a determinate sentencing regime and mandatory Sentencing Guidelines.  Crafted from whole cloth, the presumption is supported only by vague references to an ambiguous legislative history and repeated allusions to the "expertise" of the United States Sentencing Commission ("USSC").  These considerations cannot justify reaching beyond the text of the statute, particularly when application of the presumption raises serious constitutional concerns in all cases and so plainly results in an unreasonable sentence in this one.

Posts in my "Revving up" series:

• Revving up for Claiborne and Rita: will due process play any role?
• Revving up for Claiborne and Rita: a series and background
• Revving up for Claiborne and Rita: more resources
• Revving up for Rita: harsh treatment for a lesser Libby
• Revving up for Claiborne: a crack(ed) safety-valve sentence

Judge Cassell casts spotlight on federal prosecutors "swallowing"

I noted in this weekend post an article discussing US District Judge Paul Cassell's criticism of federal prosecutors' unjustified use of sentencing discretion in a tax fraud case.  I just obtained a copy of Judge Cassell's amended order in US v. Mercer, No. 2:06-CR-00161 (D. Utah Feb. 12, 2007) (downloadable below), and it is an important read.  Here are the highlights from the start and end of the order:

On January 11, 2007, the court sentenced the defendant in this case — an accountant who had pled guilty to willfully aiding and assisting in the preparation and filing of a false tax return. Remarkably, however, at the sentencing hearing, the government took the position that the defendant had not used a special skill or violated a position of trust in preparing those false returns — even though the Federal Sentencing Guidelines plainly called for an enhancement in such a case.  In other words, this appears to be a case of the government "swallowing the gun," in the colorful phrase that is often used to describe a decision by prosecutors to argue a position contrary to the obvious facts.  A brief opinion is appropriate to highlight the government's failure to apply the Guidelines fairly here....

At the core of the Ashcroft Memorandum is the goal of fairness in sentencing.  Compliance with the Ashcroft Memorandum prevents the spectacle of government attorneys arguing to the court things that are contrary to fact — it avoids prosecutors "swallowing the gun." In this case, the government did swallow the gun, as the Department's attorney ended up objecting to the court's virtually indisputable conclusion that accountants preparing tax returns either use special skills. It seems inconsistent for the Department to take that position in this particular case, while arguing before Congress that judges' "failure to comply with the [sentencing] guidelines has already meant reduced sentences in cases throughout the country, and if not addressed, will mean a steady erosion in the deterrent value of federal sentencing policy, and, ultimately, in reduced public safety." The court firmly agrees with the generally-stated position of the Department that a sentencing system that involves ignoring the obvious facts is "neither desirable nor capable of sustaining long-term public confidence."

The court has taken the trouble of writing this brief description of this case because it seems at odds with the way the sentencing process ought normally to advance. If the government wishes to recommend a sentence that differs from that recommended by the Guidelines, there are legitimate vehicles for doing so. But the facts are the facts — the government should not take disingenuous positions to the contrary in applying the Guidelines.  In other words, the court fully agrees with the goals animating the Ashcroft Memorandum — ensuring the Guidelines are calculated fairly in cases before the court.

Download Mercer.pdf

In my view, it is not at all surprising that a white-collar defendant almost got the benefit of prosecutorial "swallowing" in Mercer; it is joyfully surprising to see a judge call DOJ to the mat for its misguided act of prosecutorial leniency.  What makes Mercer so potent and important is not only how it reveals DOJ's hypocrisy about the exercise of federal sentencing discretion, but also how it showcases the challenges that any sentencing system faces in trying to regulate prosecutorial discretion.

Ninth Circuit finds Double Jeopardy bar to government sentencing appeal

The Ninth Circuit today has an interesting Double Jeopardy ruling today in US v. Blanton, No. 05-50302 (9th Cir.  Feb. 12, 2007) (available here).  Here is the decision's introduction and conclusion:

We must determine whether the Fifth Amendment's Double Jeopardy Clause prohibits the government from appealing a district court's allegedly erroneous denial of an Armed Career Criminal Act sentencing enhancement....

In summary, we agree with Blanton that the district court resolved the issue of guilt or innocence in his favor, and that the Double Jeopardy Clause bars this appeal. See Ogles, 440 F.3d at 1103-04.  It is immaterial whether the district court's interpretation of the relevant legal issue was correct. Id. at 1103; see also Smalis, 476 U.S. at 144 n.7; Smith v. Massachusetts, 543 U.S. 462, 469 (2005). Under 18 U.S.C. § 3731, therefore, the government is without authority to appeal.

There are significant Apprendi-related aspects to this ruling, and I think it may be out of step with some other circuit rulings.  It thus will be interesting to see if DOJ seeks en banc review or cert in Blanton.

Irrational (but presumtively reasonable?) federal sentencing

Stuart Taylor Jr. has has this great commentary in The National Journal entitled "Irrational Sentencing, Top To Bottom."  Here are snippets:

The spectacle of former CEOs Bernard Ebbers and Jeffrey Skilling getting sent to prison for 25 and 24 years, respectively, reminded me a bit of Roman emperors throwing criminals to the lions and bears to gratify circus crowds.  Yes, Ebbers and Skilling are world-class crooks.  The first helped inflate WorldCom's profits by billions of dollars. The second presided over the multiple frauds that caused the collapse of Enron, the largest corporate bankruptcy in history.  They helped squander the nest eggs and kill the jobs of thousands of people.

But does this justify locking them up for longer than we do most murderers?  (The average federal sentence for murder is less than 19 years.)  Does it call for keeping Ebbers in prison until he is 87 and Skilling until he is 73?  Those were the no-parole penalties specified by the U.S. Sentencing Commission's guidelines, even if both men earn the maximum 15 percent reduction for good behavior.

To be sure, these are not the most egregious examples of the savage severity of our sentencing laws. Worse still are the long terms imposed on the scores of thousands of nonviolent, nondangerous drug offenders now rotting in state and federal prisons around the country.  But while we have become numb to the minimum drug sentences mandated by Congress since 1986 (which have driven up the sentencing commission's guidelines as well), Ebbers' and Skilling's near-life-terms are fresh reminders of how wantonly our sentencing laws trash the lives of nonviolent convicts at the top and the bottom of the income scale.

To his great credit, Taylor goes on in his commentary to highlight the parsimony provisions of the Sentencing Reform Act, a provision that federal circuit courts and the US Sentencing Commission make a habit of ignoring (see here and here). 

It is a sad and telling reality that a thoughtful observer like Taylor recognizes that the federal guidelines often produce "irrational" sentences for nonviolent convicts (like Mario Claiborne and Victor Rita), while the US Department of Justice, the US Sentencing Commission and most circuit court asser that the federal guidelines are "presumptively reasonable" in all such cases.

When will there be more official post-Booker data?

As I have mentioned before, the US Sentencing Commission initially did a great job producing (on this page) real-time data on how Booker was affecting (or not affecting) federal sentencing outcomes in the district courts.  But, after its March 2006 report on the first year after Booker, real-time sentencing data from the USSC has been in short supply.  And, even more disappointingly, the Commission has not publicly explored some of the most dynamic post-Booker data issues such as defendants' fates after remands (cf. Judge McConnell's insights in Medley) or post-Booker sentencing outcomes for white-collar or other particular types of offenders. 

The absence of new and up-to-date sentencing data from the USSC is especially troubling given that the Supreme Court is exploring post-Booker sentencing realities and reasonableness review in Claiborne and Rita.  In addition, transitions in Congress could and should facilitate new conversations about post-Booker legislative reforms, and the USSC ought to be prompting such conversations through sophisticated data analysis about post-Booker sentencing realities.

I continue to want to hopeful and optimistic about the USSC's ability to encourage sensible, data-focus post-Booker reforms.  But, as the Booker data silence grows more deafening, the USSC's post-Booker work is looking even more uninspiring.

Some recent (and older) related posts:

• Will the USSC have more data for Claiborne and Rita?
• Please feed the data junkies, USSC
• What's the USSC doing these days?
• Key questions for USSC: Now what...?
• Encouraging a critical race examination of post-Booker developments
• A loud deafening silence from the Sentencing Commission
• Friday afternoon ranting about the post-Booker world
• What is the Sentencing Commission fiddling while the crack guidelines burn?
• What is the USSC doing on the Booker front now?

Debating Dahlia on death and SCOTUS

In a piece from Sunday's Washington Post here, entitled "The Dying Death Penalty?," Dahlia Lithwick develops the claim that "public and state support for capital punishment is steadily declining in America just as the resolve to maintain the death penalty seems to be hardening in the one arena where death-penalty policy once had seemed poised to change: the Supreme Court."  Justifiably, over at The Volokh Conspiracy, both Jonathan Adler and Orin Kerr assail various aspects of this piece's themes and evidence.

Whatever one thinks about the merits of Lithwick's piece (which I, too, found much too glib), the Volokh folks are right to spotlight that the relationship between SCOTUS and the death penalty is much too nuanced to capture in a few sound-bites.  For additional evidence of that reality, everyone can and should check out James Liebman's latest article in the Columbia Law Review entitled, "Slow Dancing with Death: The Supreme Court and Capital Punishment, 1963–2006."  (I hope to blog more about this important article once I get a chance to read it closely.)

The impact of financial penalties with convictions

Last week I was sent a link to this interesting working paper from the Justice Strategies division of the Center for Community Alternatives.  The paper, entitled "Sentencing for Dollars: The Financial Consequences of a Criminal Conviction," starts this way:

The financial penalties imposed, directly or indirectly, as a result of a criminal conviction, are among the least considered or analyzed of the collateral consequences.  Driven by a combination of philosophical purposes — punishment, reparation, cost recovery, revenue production and cost shifting — local governments, states and the federal government have come to impose a vast array of fines, fees, costs, penalties, surcharges, forfeitures, assessments, reimbursements and restitutions that are levied against people convicted of criminal offenses.

Currently, these financial penalties are created and imposed in a vacuum with each new fee viewed as a solitary cost.  The cumulative impact of piling on each new financial penalty is ignored and the roadblocks to reintegration are often unrecognized.

The profits in prisons

Thanks to this post at Think Outside the Cage, I saw new information about who profits from increased prison populations:  private prison corporations.  As this Forbes article details, "Corrections Corp. of America, which operates prisons and detention facilities, said Thursday its fourth-quarter profit climbed 37 percent, as inmate populations rose and new contracts went into effect."

Some recent related posts:

• Resisting the call for more prison spending
• "Justice Reinvestment" in Texas
• An amazing cartoon on modern prison realities
• Important new Vera report on "Reconsidering Incarceration"

Revving up for Claiborne and Rita: will due process play any role?

In an article that's now almost two years old, entitled "Beyond Blakely and Booker: Pondering Modern Sentencing Process" (available here), I spotlighted that the Apprendi cases involve, both expressly and implicitly, an array of constitutional provisions and principles beyond just the Sixth Amendment's jury trial right.  (Stephanos Bibas and I highlighted this point as well in our more recent article, "Making Sentencing Sensible" (available here).)

This weekend, when I finally read closely the Third Circuit's recent en banc magnum opus on sentencing burdens of proof in Grier (discussed here), I started wondering if constitutional principles other than the jury trial right might play a role in Claiborne and Rita.  Significantly, early rulings in the Apprendi line of cases (especially Jones) made repeated mention of due process and notice concerns implicated by judicial fact-finding at sentencing.  But later rulings like Blakely and Cunningham and especially the Booker remedy have dodged any real discussion of due process principles distinct from jury trial rights.

All of the thoughtful opinions in Grier (available here) provide an extraordinary account of how uncertain and debatable due process holdings and doctrines are after Blakely and Booker.  Pre-Blakely rulings like Harris and Watts and McMillan are formally still good law.  But many passages in Blakely and Booker raise many new questions, and new Justices (and the evolving views of old Justices) might be drawn to due process issues as they reflect on ugly aspects of post-Booker jurisprudence in lower courts.

Of course, due process questions are not formally before the Court in either Claiborne and Rita.  Nevertheless, Judge McConnell's great recent work in Medley (discusses here) highlights yet again that potential due process issues can lurk around every corner of any complex guideline-based sentencing system.

Posts in this series:

• Revving up for Claiborne and Rita: a series and background
• Revving up for Claiborne and Rita: more resources
• Revving up for Rita: harsh treatment for a lesser Libby
• Revving up for Claiborne: a crack(ed) safety-valve sentence

Resisting the call for more prison spending

This op-ed in the Houston Chronicle, entitled "Think outside the cell," proposes alternatives to new prison spending.  Here are snippets:

The Texas Department of Criminal Justice is requesting funds for three new prisons; two maximum security units each housing 2,000 inmates and one medium security unit housing 1,000.  This request involves the spending of approximately $377 million for 5,000 inmates.

State Sen. John Whitmire, D-Houston, chairman of the Texas Senate's Criminal Justice Committee, and state Rep. Jerry Madden, R-Richardson, chairman of the House Committee on Corrections, have joined forces to oppose this request.  Under the banner of "thinking smart about crime," they argue that approximately 6,500 nonviolent probationers and parolees with minor criminal and noncriminal violations should be placed in residential facilities where they would receive treatment for alcohol and drug abuse and counseling for the terms of their conditional release.

I hope that Whitmire and Madden win this battle in the perpetual war against crime.  I am persuaded, however, that their agenda is but a superficial tinkering with a very ugly Leviathan in need of a radical, bottom-up overhaul. Texas' criminal justice system was created by and is administered by many thousands of good people dedicated to the pursuit of truth, equality before the law and doing justice.  Sadly, however, piecemeal changes over many years have allowed for the emergence of a mean-spirited assembly line machine that too often conceals the truth and makes a mockery of the ideals of equality and justice under the law.

The egregious and unintended consequence is a prison/industrial empire, which works to the economic advantage of special interest groups. These groups' collective motto is: "If we build them, they will be sent."  The only way for our state lawmakers to curtail the influence of those who preach in favor of more prisons is to think outside the box....

This agenda is not grounded in the romantic and false belief that there is a treasure in the heart of every criminal offender just waiting to be discovered. Some are incorrigibly mean and evil. It is grounded in a belief that the majority of criminal offenders are not enemies to be conquered and destroyed. They are human beings who should be given opportunities for change and restored to our communities because it is in the public interest to do so.

Some recent related posts:

• "Justice Reinvestment" in Texas
• An amazing cartoon on modern prison realities
• Important new Vera report on "Reconsidering Incarceration"