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December 17, 2009

What are the biggest sentencing stories of the last year and decade?

One cannot avoid "biggest" and "best" stories and lists this time of year, and this year we are also seeing discussion of the biggest and best of the decade as well as of 2009.  Especially since I am going to be off-line much of today, I thought I would get into the spirit with this post encouraging readers to discuss the biggest sentencing stories of the year and of the decade. 

December 17, 2009 at 07:32 AM | Permalink


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Biggest story of the year: The significant increase in executions, reversing a slight but pretty consistent decline over the last few years.

Biggest story of the decade: Booker, Gall and Kimbrough end the era of mandatory sentencing guidelines and, with it, any effective restraint on irrational disparity.

Posted by: Bill Otis | Dec 17, 2009 9:25:25 AM

I would agree with Bill that the story of the decade is the Scalia-inspired end of mandatory guidelines.

I wonder whether this is the victory most guideline opponents sought. Federal Judges seem most willing to flex their sentencing muscle with white collar offenders while guideline sentences are still the sentence of choice for most street crime.

Posted by: mjs | Dec 17, 2009 9:59:27 AM

Biggest case of the decade, in my opinion, Apprendi v New Jersey and Blakely v Washington (which simply defined the term "prescribed statutory maximum" in Apprendi)

Apprendi says, despite years of judicial deference to legislative action, that Marbury v Madison's principle of judicial supremacy is still alive and well.

Just because the legislature says it is a goose, if in reality it looks like a duck and quacks like a duck, under the Constitution it's a duck.

Apprendi declares we are now in the era of legal functionalism and have left behind excessively deferential formalism.

bruce cunningham

Posted by: bruce cunningham | Dec 17, 2009 10:03:15 AM

Continuing the thoughts of the commentators above, one of the most important but under-appreciated cases in the line that began with Apprendi and extends through Booker and Kimbrough, is the Supreme Court's "Cotton" decision. Cotton was the first time in U. S. legal history the Supreme Court disagreed with and reversed the unanimous prior holdings of all 12 Federal Circuit Courts on any subject, holding that "drug quantity" was an element of Federal drug crimes, 21 U.S.C. 841(b). This created a serious potential problem for the justice system, as half of the inmates in Federal prisons are there for drug convictions. Based upon existing 19th century precedent, Ex Parte Bain, all of those inmates who had no quantity of drugs set forth in their indictments would have been subject to being released from prison (whether they pleaded guilty, as 97% do, or went to trial), since failure to include a material element of the offense sought to be charged was a non-waiveable, jursdictional defect that could be raised at any point in time. Perhaps 50,000 inmates might have been freed.

Instead, the Supreme Court overruled the 115 year old precedent, Ex Parte Bain, holding that the omission of an element of the crime sought to be charged in no longer a jurisdictional defect, but is subject to harmless error analysis (the "Booker Fix"). The Federal Courts finessed the drug quantity issue where 21 U.S.C. 841(b) was concerned, and held that if no specific quantity was mentioned in the indictment, then the defendant couldn't be sentenced above the maximum for the lowest level, 841(b)(1)(C), which is 20 years (or 30 years with a prior drug conviction). Some inmates got their sentences reduced to 20 years after Cotton, but the Federal criminal justice machine avoided the public humiliation that mass release of drug inmates would have caused if the Court had not overruled Ex Parte Bain. Some commentators believe that Cotton and Booker call into question the intellectual honesty and integrity of the Federal judiciary. Undoubtedly there was a political, face-saving element to the Cotton and Booker decisions.

Posted by: Jim Gormley | Dec 17, 2009 10:34:08 AM

Begay done the most good and Gall gave room for
individuals that made an effort to clean up their act a chance of lowering their sentence, as well
as jolting the 8th Circuit on their inappropriate
draconian upward sentenceing.

Posted by: Goodyr | Dec 17, 2009 12:21:26 PM

The biggest sentencing story is that stiffer sentences have filled our California prisons to the brim, and the tremendous costs are bankrupting the once Golden State.

Posted by: Los Angeles Paralegal | Dec 17, 2009 12:28:37 PM

This year hasn't been so big... biggest stories might be (1) that arson guy who was executed and may have been innocent or (2) 3-judge district court legislating California's prison system.

Of the decade? Apprendi-Blakely-Booker-Kimbrough-Gall-Spears.

Posted by: anonymous | Dec 17, 2009 2:36:36 PM

The crime rate stayed 40% lower than in the 1980's, across the board. This added $trillions to our economy.

But here is the gargantuan case, that the lawyer will never admit. 9/11, and the absence of sentencing. The 1993 WTC attack was successfully prosecuted, and the culprits sentenced. Lawyer sentencing of terrorists misled the enemy into thinking we were weak. For a mere $500,000 the enemy then damaged the economy by $7 trillion. George Bush, a non-lawyer said, attack our country, lose a country. That was not a sentencing approach.

He kept us safe, despite the relentless internal attacks of the Democrat Party. Unfortunately, he allowed himself to be intimidated by the lawyer. These embedded themselves into the military, and canceled orders down to the tactical squad level. They harassed our warriors with prosecutions and litigation. He allowed the lawyers in the Congress to attack and neutralize our intelligence services.

The biggest sentencing story? Sentencing is in failure. Kill the enemy, works. No lawyer will admit those self-evident facts.

Here is when the public will recognize the toxicity of sentencing policy when made by the lawyer. The terrorist will set off a nuclear device in a city. A new leader, not from the military, not from politics will emerge. He will destroy our external enemies and will try and execute our internal enemies. The death penalty when applies on a mass scale should be thought of as a national defense tool, and not a sentencing tool.

Posted by: Supremacy Claus | Dec 17, 2009 7:07:26 PM

The biggest criminal lover and liberator of the decade, making Justice Brennan seem conservative?


That proves an old story, the rent beats all ideologies, loyalties, and philosophies.

Posted by: Supremacy Claus | Dec 17, 2009 8:57:42 PM

The remedy to the utter failure of sentencing law and policy.


The Navy scores a good kill. Imagine the cost of the trial and risk of imprisoning these internal enemies. No fuss, no muss, no bother. In the US, there would be lawsuits by lawyers. To deter. The good guys.

Posted by: Supremacy Claus | Dec 17, 2009 9:28:05 PM

I find the stories here intriguing.

Posted by: Boomie | Dec 31, 2009 4:31:56 AM

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