Sentencing Law and Policy

That was the year that was: a few thoughts on crime and punishment in 2023

I am quite certain I cannot provide a truly thorough or fully thoughtful review of 2023 in crime and punishment and sentencing in the United States.  But I can flag a few matters that, at least for a law professor like me, helped to define the year that was in this legal space.  (And, of course, I savor any excuse to parrot language from my favorite commedy album.  The first track from that album remains depressingly timely.)  So here goes as I provide an abridged review the year that was:

Indictments and more indictments: Though we have not reached sentencings or even convictions in big cases, lots of indictments of lots of high-profile political figures have been the biggest on-going legal story and saga of 2023.  Of course, the four indictments of former Prez (and leading Prez candidate) Donald Trump serve as the central part of this remarkable story.  And Trump's many indictments certainly have shaped various political realities this year, and lower court legal developments in these cases have already starting reaching SCOTUS.  The various indictments and machinations of other notable political figures like Hunter Biden and George Santos (and Trump's co-defendants) would surely be seen as masive stories in 2023, but for everything seeming small in Trump's shadow.  

After years of increases, crime now in historic decline: Though the particulars and reasons are still debated, it is without debate that 2020 to 2022 brought significant increases in crimes in the US.  But 2023 finally saw an encouraging turn around, and here are a few press pieces and substacks that helps to capture these encouraging realities:

• From ABC News, "It is historic': US poised to see record drop in yearly homicides despite public concern over crime"
• From NBC News, "Crime in almost every category went down across U.S. in 2023, FBI reports"
• From Jeff Asher, "Crime in 2023: Murder Plummeted, Violent and Property Crime Likely Fell Nationally: These trends stand in sharp contrast with polling showing 3 in 4 Americans think crime rose this year"
• From John Roman, "Why did crime decline in 2023?  Because local government went back to normal"

Second Amendment jurisprudence finally impacting criminal enforcement: Though we are a full 15 years since the Supreme Court in Heller first formally determined that individuals have an enforceable constitutional right to keep and bear arms under the Second Amendment, lower courts long found various ways to uphold just nearly all broad laws creating criminal prohibitions on certain individuals keeping and bearing arms.  But in mid 2022, the Supreme Court recast Second Amendment jurisprudence around originalist principles via its ruling in Bruen, and courts throughout much of 2023 starting striking down an array of criminal gun prohibitions.  Most notably, a number of lower federal courts found a number of provisions of federal law criminally prohibiting gun possession by certain persons unconstitutional.  One case on this front, Rahimi, is pending before SCOTUS and oral argument suggested the Justices are disinclined to agree with the Fifth Circuit's view that a criminal bar on gun posession by those subject to domestic violence restraining orders is unconstituional.  But exactly how Rahimi gets resolved is sure to have a huge impact on a range of other gun laws in the months and years ahead.    

Major guideline reforms from fully loaded US Sentencing Commission:  Though the US Sentencing Commissioner finally and formally returned to full agency activity with confirmed appointees in mid 2022, the actions of a fully-loaded Commission really came to fruition through 2023.   In this post from a few days ago, I noted the Commission's own accoutning of its major 2023 work.  But the USSC's activity on so many important fronts for the federal sentencing system defies easy summary.  As I have explained before, I believe the most consequential and significant action by the USSC this past year has been its intricate amendments to the guidelines' criminal history rules and its decision to make those amendments retroactive.  But its revision of the sentence reduction ("compassionate release") guideline is also so very important, and its new proposed amendments for the coming year address some fundamental features of the entire guideline sentencing structure.  From 2019 through 2022, I lamented the harms and opportunity costs of the USSC lacking a quorum, and the new Commission in 2023 proved in many ways how a vibrant federal sentencing agency can contribute so much to modern sentencing law, policy and practice. 

The Sentencing Project releases (already dated) review of "Top Trends in Criminal Justice Reform, 2022"

The folks at The Sentencing Project yesterday released this terrific new fact sheet that reviews a number of state criminal justice reforms developments in this past year.  I recommend the short document in full for all the reviewed details, but here is part of the overview:

State lawmakers in at least 15 states and Washington D.C. adopted policy reforms in 2022 that may contribute to decarceration and addressing collateral consequences while promoting effective approaches to public safety.  This briefing paper provides an overview of recent policy reforms in the areas of extreme sentencing and decarceration, drug policy, prison reform, probation and parole, guaranteeing voting rights, and youth justice.

Changes in criminal justice policy were realized for various reasons, including an interest in managing prison capacity. Lawmakers have demonstrated interest in enacting reforms that recognize that the nation’s scale of incarceration has produced diminishing returns for public safety.  However, stakeholders working to reform adult and youth criminal legal system practices also encountered rhetoric on increases in violent crime which impacted the ability to adopt significant reforms like the repeal of mandatory minimum sentences and expansion of alternatives to incarceration for prison bound defendants.  Consequently, legislators and other stakeholders have prioritized implementing policies that provide a more balanced approach to public safety.  The evolving framework is rooted in reducing returns to prison for technical violations, expanding alternatives to prison for persons convicted of low level offenses and authorizing earned release for prisoners who complete certain rehabilitation programs.

Interestingly, more than half the states with notable reforms in the past year referenced in this report are so-called red states (e.g., Alabama, Florida, Indiana, Kentucky, Missouri, Oklahoma, Tennessee, Wyoming). And I call this review "already dated" because early this morning, Ohio moved a significant step closer to being another red state to complete significant criminal justice reform this year.  This local article reports the basics:

Ohio lawmakers finalized a sweeping criminal justice reform bill Thursday morning that backers say will reduce the burden on previously incarcerated Ohioans and reduce the likelihood that they return to prison.

Senate Bill 288 tackles a wide range of reforms, including changes that would make it easier to expunge criminal records and shorten prison sentences.  The bill got considerably longer Wednesday when lawmakers added distracted driving prohibitions, anti-corruption measures and increased penalties for failing to report elder abuse.

Rounding up some recent reform reads

As is too often the case, my news feed and in-box is full of really good pieces about criminal justice issues and reform that all merit more attention that the limited bloggy time I have mid-semester.  So I will try to cover lots of ground with this round-up of recommended pieces:

From Ames Grawert & Lauren-Brooke Eisen, "Don’t Let Misleading Claims Derail Federal Sentencing Reform"

From Dana Hall McCain, "A Christian view of prison reform"

From Dawinder Sidhu, "Society has failed to provide adequate ‘offramps’ away from criminal behavior"

From Greg Berman, "America’s Justice System Needs a ‘Course Correction’: Jeremy Travis"

From Joe Lancaster, "Pennsylvania Could Put a Homeless Man in Prison Over 43 Cents"

From John J. Lennon, "I Am Serving 28 Years to Life. Why Does One Person Decide if I Deserve Mercy?"

From Lauren Gill, "Breaking the Link Between Community Supervision and Mass Incarceration"

A bloggy review of the sentencing year that was 2020

I always enjoy "year in review" pieces, even in years like 2020 that many folks may quite rightly be quite eager to forget.  So I figured I might as well "celebrate" the end of a rough year with a "bloggy" accounting of 2020 based on an all-too-quick review of some blog posts from the past year.  This accounting is not meant to be representative or even all that reflective of the year that was, it is just a list of a few post titles catching my eye for each month as I went though my 2020 archives:

From January 2020

• Two jurisdictions to watch closely in 2020 for the future of the US death penalty (mentioning Ohio and US)
• Might the 2020 campaign bring back "law and order" as a political wedge issue?
• Preliminary FBI reports indicate considerable drops in murder and other violent crimes as well as in property crimes in first half of 2019

From February 2020

• Some GOP Senators, fully aware of the mandatory minimum sentence, embrace a form of jury nullification to justify acquittal of Prez Trump
• Prez Trump's reelection campaign premieres ad focused on criminal justice reform during Super Bowl
• Roger Stone gets 40-month federal prison sentence ... but will he ever actually serve it?
• "Trump grants clemency to 11, including former junk bond king Michael Milken" 
• Without any comment, SCOTUS quickly denies cert on two big cases raising the constitutionality of acquitted conduct sentencing 

From March 2020

• Citing Williams v. New York repeatedly, NY prosecutors urge judge to consider Harvey Weinstein's "lifetime of abuse" at sentencing
• "'Complete chaos': How the coronavirus pandemic is upending the criminal justice system"
• Growing reports of growing numbers of prisoners and staffers testing positive for COVID-19
• Will thousands of federal prisoners be eligible for home confinement under AG Barr's new guidelines? 

From April 2020

• Latest BOP numbers with ever growing number of COVID cases (and deaths) in ever growing number of federal facilities
• What can and should we really learn from crime data in the midst of a pandemic and lockdowns? 
• Additional COVID-influenced grants of federal sentence reductions using § 3582(c)(1)(A) 
• According to BOP reporting, federal prison population now shrinking about 1,000 persons per week

From May 2020

• The new death penalty: COVID has now killed more US prisoners in weeks than the US death penalty has in over a decade 
• Federal Defenders write to members of Congress to detail BOP/DOJ failings in response to COVID-19
• Memorializing more drug war casualties: updating the federal drug sentences that COVID-19 turned into death sentences
• Council on Criminal Justice releases big new reform report titled "Next Steps: An Agenda for Federal Action on Safety and Justice"

From June 2020

• An initial list of federal sentencing reforms to advance greater equity and justice for congressional consideration
• "America’s Criminal Justice System Is Rotten to the Core"
• Justice Department announces the scheduling of four new federal execution dates 
• Time for another long list of (mostly COVID-influenced) federal sentence reductions using § 3582(c)(1)(A)
• SCOTUS denies, by 7-2 vote, cert petition from federal death row defendants challenging federal execution protocol 

From July 2020

• Notable criminal justice reform recommendations from Biden-Sanders Unity Task Force
• SCOTUS holds in McGirt, via 5-4 vote with Justice Gorsuch authoring majority opinion, that big part of Oklahoma is a reservation precluding state prosecutions 
• Feds, revving up machinery of death, complete third execution of week
• Back by popular demand, another VERY long list of federal sentence reductions using § 3582(c)(1)(A) 
• A century after his birth, just a few choice quotes to celebrate Marvin Frankel, father of sentencing reform 
• First Circuit panel reverses death sentence of Boston Marathon bomber Dzhokhar Tsarnaev 

From August 2020

• Prez Trump finally announces full slate of (unlikely to be confirmed?) new nominees for the US Sentencing Commission 
• Via video, Lori Loughlin and her husband get agreed fixed short prison sentences in college admission scandal
• The new death penalty: COVID has now killed more US prisoners in months than the US death penalty has in the last two decades
• Am I crazy to think Joe Biden's pick of Senator Kamala Harris for his running mate bodes well for federal criminal justice reform? 

From September 2020

• Reviewing how much and how little the FIRST STEP Act has achieved 
• Some notable quotables from a high-profile speaker sounding like an advocate for criminal justice reform
• Second Circuit panel rules unanimously that district courts have broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" 
• In (sentencing) memoriam: noting a few major sentencing majority opinions by Justice Ginsburg

From October 2020

• "Drug Reforms on the 2020 Ballot" 
• Bureau of Justice Statistics reporting that, as of end of 2019, "US imprisonment rate at its lowest since 1995" 
• Some notable (and mostly heartening) criminal justice discussion in final Prez debate of 2020
• With Justice Barrett seated, isn't it now time to pack the Supreme Court ... with constitutional criminal procedure cases? 

From November 2020

• Can we be hopeful federal leaders will make deals to advance federal criminal justice reforms in the next Congress?
• Exploring what Prez-elect Biden might (or might not) get done for criminal justice reforms 
• The new death penalty: COVID has now killed more US prisoners than capital punishment over last three decades

From December 2020

• US completes execution of Brendan Bernard despite high-profile appeals for relief
• Highlighting arguments that incarcerated persons should be high on the list for the COVID vaccines
• Noticing the many regular forgotten folk so far left behind in Prez Trump's clemency capers 
• Pondering next steps in federal sentencing reform on the second anniversary of the FIRST STEP Act 
• Congress agrees on education reforms that include restoring Pell Grants for incarcerated persons!! 
• Federal prison population closes out 2020 at new modern low of 152,184 according to BOP

Lots worth reading from lots of sources for criminal justice fans

Especially in the midst of a busy week, I sometimes come to realize that I will not get a chance to blog separately about a bunch of new pieces and commentary that have been brought to my attention.  I sometime deal with realization through a round-up post.  This is one of those posts:

• From Sam Bieler at Simple Justice, "We Are Going to Mass Incarcerate Forever"

• From Nora Demleitner at The Hill, "Barr confirmation reveals shallowness of congressional commitment to justice reform"

• From Nora Demleitner at The Virginin-Pilot, "Codifying rights restoration now imperative"

• From Matt Ford at The Atlantic, "At Last, a Bipartisan Argument Against the Death Penalty: Western state lawmakers from both parties are making a pragmatic case for abolishing capital punishment"

• From Emily Horowitz at The New York Daily News, "Our cruel, counterproductive sex offender laws: Anthony Weiner is a window into what's wrong with our system of punishment"

• From Tim Morris at NOLA.com, "If inmates were being released too early, you can bet folks would pay attention"

• From Jordan Smith at The Intercept, "How The Federal Government Undermines Prison Education"

A hasty review of the SL&P year that was 2018

Year in review stories are catnip to me, so I figured I might as well use an unexpected little pocket of free time to create my own listing of big events in 2018 based on a lightning quick review of blog posts from the past year.  This listing is not representative or even all that reflective, and I welcome reader input on stories forgotten or unmentioned (or poorly ranked).  So, for giggles and comment, here is a list of post titles and links providing an imperfect, too-quick review of some notable stories from the past year:

25. Congress finally enacts "Paroline fix" that should improve victim restitution in federal child porn cases 

24. The Matthew Charles saga: another sad example of why complete abolition of parole was a mistake for federal sentencing

23. Entire First Circuit urges Supreme Court to revisit Harmelin's limits on Eighth Amendment challenges to extreme adult prison sentence 

22. What a difference a DA can make: new Philly District Attorney taking new approach to juve lifer resentencings 

21. Noticing the continued decline of the federal prison population (for now) ... and a story embedded with intricacies 

20. Judge Aaron Persky recalled by voters in response to lenient sentencing of Brock Turner 

19. "Charlottesville Jury Recommends 419 Years Plus Life For Neo-Nazi Who Killed Protester" 

18. Examining thoughtfully modern trend to prosecute overdose deaths as homicides

17. California reduces reach of its broad felony-murder law, and provides for retroactive sentence reductions accordingly 

16.  Paul Manafort found guilty of 8 of 18 counts ... and now faces real possibility of spending many years in federal prison

15. DPIC releases year-end report noting that 2018 was "fourth consecutive year with fewer than 30 executions and 50 death sentences"

14. DOJ casting new marijuana enforcement memo in terms of "rule of law" and "local control"

13. Bill Cosby gets 3 to 10 years of state imprisonment with no bail pending appeal

12.  Michael Cohen sentenced to three years in federal prison ... and joins ranks rooting hard for passage of the FIRST STEP Act

11. Washington Supreme Court strikes down state's death penalty based on its arbitrary administration

10. Child molester/gymnastics coach Larry Nassar gets (only?!?) 40 to 175 years as state prison sentence for mass molestation

9. Supreme Court grants cert on Haymond from Tenth Circuit to address when Apprendi and Alleyne meet supervised release!! 

8. Kimme’s accomplishment: Prez Trump commutes LWOP sentence of Alice Johnson!!

7. Prez Trump makes (tough) nominations to US Sentencing Commission (notably, these USSC nominees never got a Senate hearing or vote) 

6. How many federal prisoners may have Dimaya claims and how many procedural challenges will they face raising them? 

5. Criminal justice reform ballot measures passing in Florida and Louisiana, but losing badly in Ohio

4. Jeff Sessions is no longer Attorney General of the United States 

3. Justice Anthony Kennedy has announced his retirement ... which means a lot for the future of sentencing jurisprudence and so much more

2. DC Circuit Judge Brett Kavanaugh nominated by Prez Trump to replace Justice Kennedy

1. Prez Trump signs historic (though modest) FIRST STEP Act into law ... and now comes the critical work of implementing it well!!

A not-quite random collection of notable recent sentencing pieces

This week, though only half done, has been full of links to reports or commentaries or other items that seemed blogworthy but that I have not yet found time to blog about.  Particularly because I likely will be off-line much of the rest of this week, I figured I could make up for lost time with a big round-up.  So here goes, in no particular order:

• "‘We’ve Been Doing Too Many Things Wrong for Too Long’"

• "Why conservatives should support criminal justice reform"

• "My Resolution for 2018: Less Piety, More Complexity"

• "ABA urges Senate action on bipartisan sentencing reform bill"

• "The World Drug Perception Problem: Countering Prejudices About People Who Use Drugs"

• "Revise Florida’s unfair, ineffective mandatory minimum sentencing laws"

• "A Better Way to Reform Prisons"

• "Oklahoma’s Life-Sentenced Population Rising Faster than National Trends"

• "Challenging the ‘Life Sentence’ of Unemployment Upon Re-Entry"

• "Latinos, concerned about their public safety, prioritize rehabilitation over other criminal justice reforms"

• "Iran drug law change could mean 5,000 Iranians are spared death penalty"

Interesting accounting of "Top Criminal-Justice Wins of 2017"

John Legend and Carimah Townes have this extended review of notable 2017 criminal justice developments at The Root under the headline "The Top Criminal-Justice Wins of 2017."  Here is part of the lead into the listing of 11 "victories," which I have then reprinted without the accompanying explanation:

The criminal-justice system took a hard beating this year — especially at the federal level. The Department of Justice’s head honcho, Attorney General Jeff Sessions, directed all federal prosecutors to seek the harshest charges possible in every criminal case, scaled back police department investigations, bolstered civil asset forfeiture, put military-grade weapons back in the hands of local police and expanded the federal government’s role in immigration enforcement.  Important crime statistics  —  including arrest data  —  were stripped from the FBI’s annual crime report, which is typically used to assess national trends and develop potential solutions. Police officers are still getting away with killing unarmed civilians.

Yes, this year was one of the worst in recent memory.  But what if I told you that there’s reason to hope  —  that there is still some good to latch on to?  Well, there is.  Here are 11 criminal-justice victories to prove it.

1. New York and North Carolina “raised the age.”...

2. The Senate passed critical juvenile-justice legislation....

3. Some juvenile lifers were released from prisons....

4. Thousands of convictions were dropped because of lab scandals in Massachusetts....

5. Louisiana passed a comprehensive reform package....

6. A progressive district attorney candidate in Philadelphia won the election by a landslide....

7. New York City announced a plan to close Rikers Island....

8. There are more eyes on prosecutors....

9. Use of the death penalty is still on the decline....

10. Poor drivers in California got some relief....

11. Multiple programs are helping formerly incarcerated people rebuild....

A Call for Papers: "Is It Time for Truth & Reconciliation in Post-Ferguson America?"

I am always happy, indeed eager, for this blog to be a forum for making calls for papers and/or for promoting events of interest to criminal justice academics and advocates.  To that end, I am happy to be able to post this item as requested recently via email:

Call for Papers: "Is It Time for Truth & Reconciliation in Post-Ferguson America?"

Sponsored by Michigan State University College of Law

Ever since Europeans first settled the continent over four hundred years ago, racial injustice has existed in North America. Human bondage was formally recognized in the United States for nearly a century following the Nation's birth in 1776.  While the Thirteenth Amendment officially abolished slavery in 1865 and the Fourteenth Amendment mandated equal protection in 1868, nearly another century passed before "separate but equal" was repudiated and some progress was made.  Today we still see persistent racial inequities throughout American society.   The criminal justice/prison complex disproportionately targets, captures and incarcerates persons of color; and police shootings of unarmed black victims — such as of Michael Brown in Ferguson, Missouri in Aug. 2014 — are grimly commonplace. It is difficult to deny, in light of this history, that America has a major problem of race.

What can be done?  Truth and Reconciliation is a process that has been used effectively in other nations and cultures (e.g., South Africa; native nations) following times of deep racial discord/violence.  The idea is that true healing can begin only when past atrocities and injustices are first acknowledged and addressed.

The Symposium Committee, in conjunction with the University's administration, seeks to convene leading activists, scholars, policymakers, and thought-makers for 1-2 days of discussions and conversations on the topic of the Nation's responsibility to account for the history of racial injustice in America.  Selected submissions will be presented at the Law Review Symposium in March 2018, and published in a special symposium issue of Michigan State Law Review.

To be considered, please send an abstract (300 – 500 words) outlining your proposed paper to Professor Catherine Grosso at grosso @ law.msu.edu and Marie Gordon at mgordon @ law.msu.edu by August 15, 2017.  Don’t hesitate to contact us if more information would be helpful.

Faculty Co-Sponsors: Tiffani Darden; Matthew Fletcher (Director of Indigenous Law & Policy Center); Kate Fort (Director of Indian Law Clinic); Brian Gilmore (Director of the Housing Clinic); Catherine Grosso; Michael Lawrence (Foster Swift Professor of Constitutional Law); Barbara O'Brien (Editor, National Registry of Exonerations); Wenona Singel (Assoc. Director of the Indigenous Law & Policy Center)

Eager to hear various perspectives on the SCOTUS sentencing Term that was

In this post last September, I previewed the SCOTUS Term that just wrapped up this morning by asking "Are we about to start the #Best Ever SCOTUS Term for Eighth Amendment?".  (I thereafter followed up with a grand total of one post promoting the silly hashtag, #BESTEA = Best Ever SCOTUS Term for Eighth Amendment for this Supreme Court Term.)  

Looking back now, I do not think this past SCOTUS Term proved to be truly monumental for the Eighth Amendment, although I do think the Montgomery ruling is a (so-far under-examined) big deal.  Ironically, the surprising and sudden death of Justice Antonin Scalia may have been the biggest Eighth Amendment development: Justice Scalia had long been among the most vocal and frequent critics of the Court's modern "evolving standards" Eighth Amendment jurisprudence, and his eventual replacement, no matter who that ends up being, seems unlikely to be as hostile to this jurisprudence.  Indeed, the next new Justice will be joining a Court that seems to already have at least five, and maybe even six, Justices open to continuing to interpret the Eighth Amendment as a serious limit on serious punishment other than just the death penalty.  (I am counting the Chief Justice as the sixth, based in part on his surprising vote with the Kennedy majority opinion in the Montgomery case.) 

Of course, there were a number of notable constitutional cases/developments outside of the Eighth Amendment context this past Term involving important sentencing issues.  For death penalty followers, the Sixth Amendment ruling in Hurst was and will remain a very big deal for the forseeable future (especially in Alabama, Delaware and Florida).  And the shock-waves of the Johnson Fifth Amendment ruling from the end of last SCOTUS Term has and will continue to rumble through the Welch retroactivity ruling and today's grant in the Beckle case to address the application of Johnson to the career offender provision of the federal sentencing guidelines.

In the coming days and weeks, I will likely to some writing about the SCOTUS sentencing Term that was along with some predictions about what the future might hold for SCOTUS sentencing jurisprudence.  In the meantime, though, I would be eager to hear from readers (in the comments or via email) concerning what sentencing case(s)/opinion(s) they think were most important or significant or telling or consequential.  And anyone who can provide perspectives on the SCOTUS sentencing Term that was wth a Tom Lehrer flair will be sure to get extra praise and promotion in this space.

In praise of "The Record" created by The Marshall Project

Anyone and everyone who reads this blog ought by now be regularly checking out all the criminal justice reporting and referencing now done by The Marshall Project. And, wonderfully, this terrific resource is now also committed to archiving criminal justice stories through what it is calling The Record.  Via the week-ending email I get from The Marshall Project, here is what this new feature is all about:

The Record is the online library TMP staff has curated over the past two years of some of the best criminal justice reporting on the internet.  Here is a 14,000-entry collection of reporting about topics, including “sentencing reform” and “death penalty”; events like the “Charleston Church shooting,” and people, including “Kalief Browder” and our namesake, “Thurgood Marshall.” Check it out and please send us your feedback....

There are many reasons why we did this; my favorite is that by making it easier for journalists, lawyers, academics, and others to find criminal justice stories we improve the chances that those engaged in the countless debates to come will be armed with more historical context and perspective, not to mention good, old-fashioned facts. That point was emphatically made on Thursday— the very day we launched, right on cue — by Bill Clinton, whose sharp retort to "Black Lives Matter" protesters begged for a look back at the conditions and consequences of the 1994 Crime Bill (a category included in The Record). The story of that law, like every other contentious criminal justice policy, is complicated, more complicated than either the protestors or the former president have made it out to be.  If the stories contained in The Record help illustrate the contours of those complications, the nuances that get lost in the heat of the moment, the background that helps explain why some themes suddenly rush to the foreground, our work will have succeeded.

An effective review of the 2015 year that was in criminal justice

As I reflect this day on the interesting and dynamic last twelve months in the field of criminal justice, I find myself wishing I could channel the brillance of Tom Lehrer to write an amusing and poignant song to tell the tale of the year that was.  (For fellow Tomfoolery fans, here are some links to always timely Lehrer classics like A Christmas Carol (just a few days late) and Fight Feircly Harvard (for football fans) and Whatever Became of Hubert (for political fans) and Who's Next (for those concerned about the Iran deal).)  

But because I lack the time and the talent of Lehrer, I am content to provide a review of the year that was via this effective Huffington Post piece authored by Lauren-Brooke Eisen of the Brennan Center for Justice.  The lengthy piece is headlined "Criminal Justice Reform in 2015: Year End Review," and below are some excerpts from its start, end and some in-between mentions of some sentencing matters (with links from the original):

Criminal justice reform continued to build momentum this year within the inner sanctum of the Beltway and across the nation in a handful of states. It emerged as a significant issue in the presidential campaign, and looks likely to stay front and center into 2016. Some of the year’s most significant steps forward (and back) are highlighted here....

April: A significant number of candidates running for President contributed essays to a book on criminal justice reform, entitled Solutions: American Leaders Speak Out on Criminal Justice.  New York Times White House correspondent Peter Baker wrote, “The last time a Clinton and a Bush ran for president, the country was awash in crime and the two parties were competing to show who could be tougher on murderers, rapists and drug dealers.  But more than two decades later, declared and presumed candidates for president are competing over how to reverse what they see as the policy excesses of the 1990s and the mass incarceration that has followed.”

With the streets still smoldering in Baltimore, Hillary Clinton gives a speech declaring, “It’s time to end the era of mass incarceration.” 

July: Former President Bill Clinton concedes that the 1994 Crime Bill, which imposed harsh sentences for many crimes and provided incentive funding to states to build more prison beds, “made the problem worse.”...

July: President Obama takes three high-profile actions in one week, demonstrating that he wants criminal justice reform to be one of his legacies.  On Monday, July 13, the president commutes the sentences of 46 non-violent drug offenders, the greatest number of commutations issued in a single day since Franklin Roosevelt.  The next day, President Obama gives a “passionate” address on criminal justice before the NAACP, flatly stating, “Mass incarceration makes our country worse off, and we need to do something about it.”  Then, on Thursday, July 16, President Obama becomes the first president to visit a federal prison when he tours a facility in Oklahoma.  After chatting with six non-violent drug offenders for about 45 minutes, President Obama remarks, “There but for the grace of God.”   And on the last day of the month, President Obama announces a pilot program allowing some prisoners to use Pell Grants for college courses, which Congress had banned in 1994....

November: President Obama uses his executive authority powerfully this year and signs an executive order to “ban the box,”  prohibiting federal agencies from asking potential employees about their criminal records on job applications. The federal government, President Obama says, “should not use criminal history to screen out applicants before we even look at their qualifications.”

December: President Obama commutes the sentences of 95 federal prisoners and pardons two. The number of commutations granted exceeds those of the last four presidents combined....

October:  In the most significant reform measure in recent history, the Senate Judiciary Committee votes 15-5 to send the bipartisan Sentencing Reform and Corrections Act to the floor. Although the measure does not eliminate mandatory minimum sentences entirely -- and in fact lengthens mandatory sentences for firearms and domestic violence offenses -- it reduces mandatory minimums for nonviolent drug crimes.  It also allows current inmates who qualify to cut their sentences by 25 percent, and sets limitations on juvenile solitary confinement.  The Act is now pending on the Senate floor and is expected to be taken up in 2016.

November: House Judiciary Committee unanimously approves the Sentencing Reform Act, the House version of the Senate sentencing reform bill. The bill is expected to be taken up by the full House in 2016....

May: Alabama Gov. Robert Bentley (R) signs criminal reform legislation which is projected to cut the state’s prison population by 4,200 over five years.  In reality, it’s not much of a trim -- the state’s prisons are already running at about 185 percent of capacity.  Penalties for some nonviolent property and drug crimes are reduced, and more nonviolent offenders are to be diverted from prison. The state is expected to save a total of $380 million.

Nebraska Gov. Pete Ricketts (R) signs criminal justice legislation, which is projected to cut the state’s prison population by 1,000 over five years. Despite having one of the lowest incarceration rates in the nation, Nebraska’s prisons were operating at 159 percent of capacity at the end of 2014, and are projected to hit 170 percent by 2020. The state is expected to save a total of $300 million in corrections costs....

December: The Maryland Justice Reinvestment Coordinating Council, a creation of the state legislature to examine how to reduce Maryland’s prison population, releases its final recommendations.  One of 25 proposals in the report is one that would create a major change in how drug offenders are sentenced, recommending sentencing guidelines that focus on treatment in lieu of incarceration for those charged with possession....

2015 proved an extraordinarily active year for criminal justice reform in both legislative changes and the public discourse.  2016 will certainly be a year to watch amid fear that some Presidential hopefuls will start to back away from their strong support of criminal justice reform.  Already, Presidential hopeful and Sen. Ted Cruz (R-TX) voted against significant criminal justice reform in the Senate Judiciary Committee, while this spring he supported efforts to reform the justice system.  Robert Kennedy once said, "Each time a man stands up for an ideal or acts to improve the lot of others or strikes out against injustice, he sends forth a tiny ripple of hope."  As we take stock of what was accomplished to improve the criminal justice system in 2015 and look ahead to 2016, a narrative of tiny ripples of hope emerges.  And with President Obama working to ensure justice reform is part of his legacy, criminal justice reform will likely remain front and center. 

Another July 4th open thread seeking comments on liberty and freedom in the USA

Blogging is likely to be light this holiday weekend as I am on the road visiting family.  But, as I has happened before, the morning of July 4 makes me eager to highlight some prior Independence Day blogging and to urge readers to use this space to comment on the state of liberty and freedom in the United States.

Some prior July 4 posts:

• 2013: "Judges refuse to delay order to release 9,600 California inmates"
• 2012: Judge down under laments mandatory 20 years (with parole) for brutal contract killer
• 2011: An Independence Day open thread seeking comments on liberty and freedom in the US
• 2010: Celebrating our declaration of rights to "Life, Liberty and the pursuit of Happiness"
• 2009: What to the American imprisoned is the Fourth of July? 
• 2008: Celebrating liberty in the country leading the world in incarceration rates
• 2007: House hearing planned to examine Bush commutation
• 2006: A holiday retrospective on Blakely fireworks
• 2005: Celebrating liberty, Blakely-style

Obviously, the last couple of years I have not done special July-4th themed posts, but I sometimes think all of my posts on crime and punishment are infused with inherent Americana.

Seeking nominations for top sentencing stories of 2013

As time permits over the next few days, I likely will review the blog archives for 2013 and begin to assemble a list of what I consider the top sentencing stories for the year coming to a close. As is usually the case, significant sentencing decisions by the Supreme Court will be sure to make the list. But at least a few other development emerging from other courts and other branches are sure also to be noted.

As the title of this post reveals, I welcome and encourage input from readers as I think about what 2013 wrought.

The Crime Report lists "Ten Most Significant Criminal Justice Stories of 2012"

I always enjoy end-of-the-year Top 10 lists, especially when they deal with matters of crime and punishment.  Consequently, I was both excited and intrigued by this lengthy new piece at The Crime Report titled "The Ten Most Significant Criminal Justice Stories of 2012." Here is the set-up to the list, followed by the Top 10 (click through to see discussion of each item on the list):

Even in a year marked by heart-wrenching tragedy, we believe it’s important not to lose sight of  developments in criminal justice that promise to improve the lives of millions of Americans — and even make us safer — as we enter 2013.

For our second annual ”Top Ten” list, The Crime Report asked readers, contributors  and columnists to join us in nominating the stories and issues they believe have had the most significant impact during 2012 — and will bear watching over the next year.

We won’t pretend the list is definitive.  And perhaps, in a reflection of the kind of year it has been, not all the choices represent “positive” impacts. 

But as we’ve also noted this year, criminal justice appears to be one of the few areas of our national life where there is broad bipartisan agreement on the shape of an agenda for change.

That’s worth celebrating in 2012.

Later this week, we’ll be running the second part of our annual feature: the top policymakers or newsmakers in criminal justice during 2012....

THE 2012 TOP TEN

1. Supreme Court LWOP decision in Miller v Alabama: progress on Juvenile Justice...

2. Passage of Marijuana Legislation in Washington and Colorado...

3. The Connecticut School Shootings and Mass Gun Violence...

4. Trayvon Martin and the intensifying conflict over gun control... 

5. Social Impact Bonds and DOJ’s “Investment in Innovation”...

6. Three Strikes Reform in California...

7. Camden (NJ) fires its cops...

8. Connecticut and Capital Punishment... 

9. Prison-to-College Pipeline...

10. Pro Bono Requirement for New York Bar...

I personally think #2 on this list is a MUCH bigger deal than anything else on this list. Also, I think the rejection by Californian voters of the effort to repeal the state's death penalty via ballot initiative should be high on this list. And I would love to hear from readers their views on what they think is wrong (or right) about this Top 10 list (which may inform my own end-of-year sentencing law and policy list in the weeks ahead).

Weekend thoughts on the SCOTUS week that was and the one to come?

After a long dry spell for sentencing fans, last week brought lots of notable SCOTUS action in the criminal justice arena with the messy Williams ruling on Monday and then the crisp defense wins in Southern Union and Dorsey on Thursday.  And this coming week is sure to bring us not only juve LWOP rulings in Jackson and Miller, but also decisions concerning Arizona's immigration law, the Stolen Valor Act and, of course, health care reform, all of which seem likely to have significant modern criminal justice implications.

So, with that set up, I encourage everyone to share (via comments here or e-mails to me) any new and/or deep thoughts about all this SCOTUS action.  Here is one: in light of the outcomes in Dorsey and Southern Union, I am expecting the defendants in Jackson and Miller to prevail either 5-4 or 6-3 and I am expecting the ruling to be fairly narrow.  (Of course, I am often wrong when developing these kinds of expectations, so do not make book on these predictions.)

Recapping posts on last week's SCOTUS criminal justice work:

• Williams v. Illinois, the latest SCOTUS Confrontation Clause ruling, finally handed down by deeply divided Court
• Anyone figured out Williams v. Illinois or its tea leaves for the sentencing cases?
• In 6-3 opinion, SCOTUS finds that Apprendi rule applies to criminal fines
• In 5-4 opinion, defendants prevail in crack pipeline cases via the FSA
• A (too) quick first take on Southern Union and Hill/Dorsey
• Has Justice Scalia won the legislative history war despite losing Dorsey battle?
• Doesn't Southern Union suggest Sixth Amendment limits judicial factfinding for restitution punishments?
• A recap and request concerning today's big SCOTUS sentencing action

A recap and request concerning today's big SCOTUS sentencing action

In part because my head is still spinning much too fast after reading the Supreme Court's work today in  Southern Union (basic here), and Dorsey (basics here), I think I am going to get "off the grid" for at least the next few hours. 

Before doing so, I will recap via links below my posts on these cases, and also make this request to any and all fellow sentencing nuts: please use the comments to this post (or send me an e-mail) to report any highlights from other blogs or the traditional media concerning reactions to these opinions.  I have already seen this FAMM press release about the Dorsey ruling, and I suspect a lot more commentary will follow. 

I will be grateful to any and all who help me identify the most interesting or notable reactions (and I will happily provide space for thoughtful guest-posts if/when readers want to develop detailed commentaries too intricate or important to lurk only in the comments).  Thanks.

Today's posts on today's SCOTUS sentencing stuff:

• In 6-3 opinion, SCOTUS finds that Apprendi rule applies to criminal fines
• In 5-4 opinion, defendants prevail in crack pipeline cases via the FSA
• A (too) quick first take on Southern Union and Hill/Dorsey
• Has Justice Scalia won the legislative history war despite losing Dorsey battle?
• Doesn't Southern Union suggest Sixth Amendment limits judicial factfinding for restitution punishments?

An effective review of the SCOTUS year that was(n't much)

Writing in The National Law Journal, Tony Mauro and Marcia Coyle have put together this lovely review of Supreme Court highlights from 2011.   The piece is headlined "Aside from Wal-Mart, few huge cases at high court; In business cases, there were rulings that pleased and angered both sides."  Here is the start of the piece along with are a few of the passages discussing some criminal justice SCOTUS happenings from the year that was:

The year 2011 at the U.S. Supreme Court was the calm before — and after — the storm.

The Court was no longer fodder for the State of the Union address, as it was in 2010. Few of the cases it decided in 2011 had the incendiary impact of the Citizens United decision of 2010 — or of the high-profile cases it will decide in 2012. The Court has agreed to hear cases on the Affordable Care Act, redistricting in Texas, Arizona's tough immigration law, broadcast indecency and environmental regulation, among others.  For a Court that views itself as apolitical and above the fray, 2012 will place the justices in the headlines plunk in the middle of a presidential campaign....

Other highlights and lowlights of this year at the Supreme Court: ...

GET OUT OF JAIL

California fared worse than Arizona in 2011. A bitterly divided Court, citing "needless suffering and death" in California prisons, upheld a court order requiring the state to reduce its prison population by an estimated 40,000 prisoners within two years to relieve overcrowding. The decision in Brown v. Plata, written by Justice Anthony Kennedy, drew a stinging dissent from Justice Antonin Scalia, who wrote that the Court was affirming "what is perhaps the most radical injunction issued by a court in our Nation's history." The state also lost the violent video game wars when the justices struck down on First Amendment grounds the state law barring the sale or rental of those games to minors.

WITH PICTURES

To underscore the crowded conditions in California jails in the Plata case, Kennedy added some dramatic photographs in an appendix to his majority opinion.  Drawn from the trial record, they looked like photos from a magazine exposé or a documentary.  The use of photographs, maps or other images is extremely rare in Supreme Court decisions, and usually confined to redistricting cases or border disputes.  North Carolina lawyer Hampton Dellinger, who once catalogued the use of photos in Court rulings, said the practice should remain rare.  "Justices have plenty to disagree over, wielding words alone," he opined. "With today's visual technologies — more manipulable than ever — any movement towards making photos a regular part of the Court's opinions will likely lead to more arguments among the justices rather than less."...

TRENDING ...

The Court also continued a revolution begun in 2004 to revitalize the Sixth Amendment's confrontation clause. The justices, whose divide in these cases is not along the usual ideological lines, held that prosecutors may not introduce a forensic lab report containing a testimonial certification through the in-court testimony of an analyst who did not sign the document or personally observe the test.  The revival of the confrontation clause continued this term with a case heard in December....

SCALIA'S GOOD DAY

Scalia once said writing dissents made life bearable.  By that measure, June 9 was a red-letter day.  He dissented in Sykes v. U.S. and introduced a new word to the Supreme Court lexicon.  Kennedy wrote the 6-3 majority opinion, interpreting the Armed Career Criminal Act.  The Court found that fleeing from a law enforcement officer counted as a violent crime for purposes of the law.  That, Scalia said, represents "a fourth ad hoc judgment that will sow further confusion.  Insanity, it has been said, is doing the same thing over and over again, but expecting different results.  Four times is enough."  He did not stop at implying his colleagues were nuts.  Scalia made mincemeat of Kennedy's analysis in what he called the majority's "tutti-frutti opinion."

Intriguing list of "Ten Most Significant Criminal Justice Stories of 2011"

Over at The Crime Report, this new special report sets forth a list of "The Ten Most Significant Criminal Justice Stories of 2011." Here is part of the set up authored by Stephen Handelman, Executive Editor of The Crime Report, and then just the list without the accompanying descriptions:

What we want to celebrate and take note of — more than anything else — are developments in criminal justice policy, practice and theory that challenge preconceptions and break new ground; and that are worth following up in 2012.   Lists are inevitably subjective. Your list may be different from ours — and that’s fine.  We want to hear your comments, suggestions, ideas — and criticism.

Some of our choices cover ideas and approaches begun years before--but for one reason or another showed special promise or produced interesting and replicable results in 2011. Many of the programs that attracted headlines or commentary this year in fact had their roots in the paradigm-busting ideas of a few hardy thinkers as much as a decade ago.

One final note, which we can’t over-emphasize: this list includes notable accomplishments on both the left and the right of the spectrum: we honor both the Right on Crime movement begun by conservatives and new civil rights activism by Eric Holder’s Justice Department — underlining The Crime Report’s rigorous non-partisanship.

1.  Right on Crime

2.  Eyewitness ID

3.  Hawaii HOPE experiment

4.  Non-incarceration interventions utilized by San Francisco

5.  Changing rape definition

6.  Think Outside the Cell

7.  New Media In Criminal Trials

8.  DOJ Website crimesolutions.gov

9.  Revival of US DOJ civil rights division

10.  Justice Realignment (California)

As is the case with most "Top 10" lists, I find some of these choices compelling and others curious.  In my view, the biggest omission is the decline in the nation's imprisoned population for the first time in many decades (which is also taking place at the same time as a continue decline in crime rates).

ACLU blog provides series of notable year-end posts

I am pleased to see that the folks at the ACLU have had the energy and inspiration to do a series of posts recapping the year that was in criminal justice news and developments.  Here are links to these posts:

• Cast Your Ballot for the Worst Prison Innovation of 2011: With Solutions Like These, Who Needs Problems?

• Criminal Justice Reform 2011 –- The Good, the Bad, and the Work Ahead

• Death Penalty Decline Continues

• The Criminal Justice Year in Review -- 2011

Seeking guest posts for 2011 sentencing "Year in Review" posts

When time and energy permits, I have had a habbit around the holiday season to develop some "Year in Review" kinds of posts for this blog (often with always-fun Top 10 lists).  Examples can be found from 2004 here and from 2005 here and here and from 2006 here and from 2007 here and from 2009 here and from 2010 here (I am not sure what the heck happened in 2008).

Time and energy may allow another such post in the weeks ahead, but this year I thought it might be fun and informative to encourage interested folks to send me fodder for guest posts in the "Year in Review" spirit.  I neither expect (nor really even desire) folks sending me comprehensive lists on all sentencing fronts, but I would especially welcome targeted year-end review (or even next-year preview) posts on particular topics. 

With luck, lots of different folks can and will send me via e-mail some (cut-and-paste- friendly) copy that reviews, say, the federal sentencing year or the drug sentencing year or the celebrity sentencing year or the legislative developments of the year or whatever else you might be interested in sending my way. 

Mid-year thoughts on (slow?) 2011 for sentencing stories

As folks get back to work after the long holiday weekend, I have been thinking about what might become big sentencing stories through the second half of 2011. Nothing really major jumps to mind, perhaps in part because this current year has been relatively calm on various sentencing fronts.

In the death penalty arena, the Supreme Court issued no big rulings this past Term, and no major capital cases appear on the Court's horizon. illinois' decision to abolish the death penalty made for big news, though capital punishment had been functionally dead for a decade there already. Other states continue to struggle getting drugs needed for executions, though we have still had the usual pace of 4 or 5 executions each month nationwide through 2011.

In the federal sentencing arena, the US Sentencing Commission's retroactive application of the new lower crack guidelines is consequential (though not surprising). But Congress seems not yet interested in any broader sentencing reform in the wake of last year's passage of the Fair Sentencing Act. Likewise, while the Justice Department and perhaps the USSC will keep expressing concerns about troublesome features of the federal sentencing status quo, I doubt either will be proposing or pushing major reforms anytime soon.

Because of tight budgets and crowded prisons, state sentencing reforms have been the most dynamic and dramatic in the first part of 2011. And, thanks to the Supreme Court's Plata ruling, California is among the states having to prioritize sentencing and corrections reform.

Of course, for defendants, prosecutors and counsel directly impacted by 2011 developments to date, this year has already been eventful. But after more than half a decade in which a landmark SCOTUS ruling, or a Justice transition, or a national election made headlines through the summer months, right now 2011 feels a bit sleepy by comparison to this blogger

Top 10 sentencing stories of 2010

Without too much reflection or enough sustained thought, I offer below my quick take on the Top 10 sentencing stories of 2010.  I urge readers to question my choices (or to ask for clarifications for why some of these items make the list and why others were left off):

10.  Congress's near-miss failure to pass the National Criminal Justice Commission Act of 2010

9.  California's near-miss failure to legalize marijuana

8.  US Sentencing Commission gets new members and a new chair after lots of notable guideline amendments all while the Booker federal sentencing system soldiers on

7.  Republican take over of the US House of Representatives and many state governorship along with the emergence of a Right on Crime movement

6.  The continued stable(?) state use of the death penalty with 9 or 10 death sentences and 4 to 5 executions per month nationwide all while lethal injection litigation soldiers on

5.  SCOTUS transition with Justices Stevens being replaced by Justice Kagan

4.  The leveling off of prison growth in the states with many looking to reduce prison populations mostly for budgetary reasons

3.  The Supreme Court's landmark Sixth Amendment ruling in Padilla v. Kentucky

2.  Congress's passage of the Fair Sentencing Act of 2010

1.  The Supreme Court's landmark Eighth Amendment ruling in Graham v. Florida

Any thoughts on top sentencing stories for 2010 ... and 2011?

If time, energy and family allow, I will likely do a post in the next few days in which I review my top 10 sentencing stories for 2010.  A couple of the top 10 entries are pretty obvious, such as the passage of the Fair Sentencing Act by Congress and the Supreme Court's Eighth Amendment ruling in Graham v. Florida.  But there are lots of other top possibilities, ranging from the near-miss pot legalization ballot initiative in California to the news of reductions in state prison populations to the emergence of Right on Crime.

As I look back and reflect on my own top 10 for 2010, I encourage readers to do the same and also to share their thoughts via the comments to this post.  Relatedly, as the headline of this post hints, I am already starting to look ahead to what may be brewing as top stories for next year.  Though I doubt I will make any crazy bold predictions about sentencing developments in 2011, readers are certainly encouraged to channel their inner Jeane Dixon to make forecasts in the comments.

The Heinz sentencing year: 2009 all about anticipation...

For my last post of 2009, I will recap the year in sentencing by showing my age and referencing the classic Heinz ketchup ads with the Carly Simon song "Anticipation."  Specifically, my basic take on 2009 as a year in sentencing is that nothing all that dramatic, dynamic or consequential happened, but a lot of potentially dramatic, dynamic or consequential events have been teed up for 2010.  

For example, the Supreme Court has granted cert and/or heard argument on an array of very significant sentencing cases on issues ranging from the constitutionality of juve LWOP to the reach and application of Blakely and Booker, ranging from the effect of defense lawyer’s wrong advice on the collateral consequences of a guilty plea to various challenges to various new federal sex offender laws.  But there really was not a major landmark SCOTUS sentencing ruling in 2009, so we all await the fireworks from the Justices in 2010.

Similarly, Congress was full of talk of sentencing reform.  Senator Jim Webb rolled out a bill for creating a special commission to study mass incarceration and related sentencing issues in a comprehensive fashion, and other federal bills addressed in more limited ways a various important crime and punishment topics.  And yet, none of these bills seemed to get particularly close to passage despite a political environment that would seem to present a special opportunity for legislative reforms.  Still, the stage seems set for some movement on some legislative fronts, perhaps starting with the crack/powder disparity, in 2010.

Likewise, both the US Sentencing Commission and the US Department of Justice were engaged in a long-term review and reassessment of modern federal sentencing realities.  Neither institutional player rolled out any major reform proposal in 2009, but it seems possible (and perhaps likely) that both will move forward in some new (and perhaps bold) new directions in 2010. 

In the arena of the death penalty, the biggest 2009 development might have been the slight uptick in the number of execution and Ohio's successful adoption of a new one-drug lethal injection protocol.  But it won't be until 2010 that we get to see if Ohio's path-breaking will lead a march by other states on a new execution path.

Regular readers may recall my series of posts at the start of 2009 wondering what might the year have in store for: executive clemency and the federal judiciary and its criminal caseload and the death penalty in the US and punishment theory and incarceration rates and Second Amendment jurisprudence and sex offender law and policy and drug sentencing law and policy and the US Sentencing Commission.  As suggested above, I think the answer has been "not much."  But I think a whole lot may be in store for 2010.  And, assuming health and happiness in the year ahead, I hope and expect to cover all the action in this space.

Happy 2010 to everyone!

Any thoughts on the top sentencing stories of the year?

This time of year always lends itself to end-of-year reflections, and I have started reflecting on some of the biggest sentencing stories.  I would welcome reader input on what should be deemed the biggest sentencing stories of 2008. 

Lethal injection litigation, prison overcrowding problems, post-Gall/Kimbroughcircuit rulings, crack retroactivity issues, clemency craziness, and election year debates and developments can all make a case for being the top sentencing story of the year.  And, if I am forgetting others, I trust helpful readers will make sure nothing big gets overlooked.

What were the biggest (or most blogworthy) sentencing stories while I was away?

Though I was only on-line a few times while away, thanks to terrific guest bloggers I was able to keep up with major sentencing developments by reading my own blog.  The story that was most dynamic and dramatic during my time away was the debate (and legal appeals) concerning Texas's (ultimately successful) efforts to execute Jose Medellin (basics here and here).  But the story I find most interesting is the surprising decision by a military commission to sentence Salim Hamdan, the Yemeni national who was Osama Bin Laden’s driver, to only 66 months following his conviction on charges of providing support to terrorism.

The fact that Hamdan received such a relatively short sentence — which is years shorter than the average sentence given to crack defendants in federal courts — provides an outcome-specific irony to all the legal and political wrangling over military tribunals.  In addition, the fact that Hamdan was sentenced by a jury, rather than by a judge (as per standard military justice procedure), puts an interesting twist on the years of post-Blakely debate concerning Sixth Amendment jury trial rights.

Though the guest-bloggers did a great job covering so many sentencing stories, I am sure some notable sentencing tid-bits have slipped below the radar.  Readers are encourage to use the comments or e-mail to spotlight stories from recent weeks that merit more attention.

A year-end perspective on various sentencing-related topics

paThough I have already provided this quickie sentencing year-in-review, I am pleased to see around the web more thorough year-end reviews on various sentencing-related topics:

• The Sentencing Project here has a review of 2007 developments in felon disenfranchisement reform.

• The Drug War Chronicle here has a review of the "Top Ten Drug War Stories of 2007"

• White Collar Crime Prof Blog here gives out "2007 White Collar Crime Awards"

• The Death Penalty Information Center (as previously discussed here) has made available here its 13th annual Year-End Report.

Thinking about the top sentencing stories for 2007

Over at TalkLeft, Jeralyn in this post rightly takes Time magazine to task for this extraordinarily lame  list of the top 10 crime stories of 2007.  Of course, this got me thinking about the top sentencing stories of 2007, and I am feeling a bit overwhelmed by all the possibilities.  By any measure, 2007 has been an amazing sentencing year, and I am not sure how to rank the significance of all these events:

• New USSC reduced crack guidelines
• USSC decision to to make its new guidelines retroactive
• Supreme Court's post-Booker decisions in Rita and then Gall and Kimbrough
• The "celebrity" sentencings of Conrad Black, Paris Hilton, Lewis Libby and Michael Vick
• Commutation of Lewis Libby's sentence by President Bush
• Hub-bub and eventually striking down of Genarlow Wilson's mandatory sentence
• Continued hub-bub over the former border agent's mandatory sentences
• California and other states' on-going struggles with its prison over-crowding problems
• Sex offender GPS tracking become more common and thus more costly
• Georgia state supreme court striking down state's sex offender residency restriction
• Heightened debate over child rape as a death-eligible offense
• Abolition of the death penalty in New Jersey
• De facto moratorium on executions as a result of Baze case before the Supreme Court

I have listed the death penalty stories last because they likely impact the fewest defendants, even though they tend to get the most media attention.  Readers are, of course, encouraged to note in the comments any other big stories I missed in this quick list.

Recapping a remarkable sentencing week

Though I still think the weeks surrounding the Supreme Court's 2004 Blakely decision may have been the most remarkable for sentencing developments in modern times, this past week certainly was remarkable for so many reasons.  Here is a abridged review of what make this past week so noteworthy:

SUPREME COURT BOOKER RULINGS AND COMMENTARY

• SCOTUS rules for the defendants in Gall and Kimbrough!!
• A quick take on winners and losers in Gall and Kimbrough
• A quick Justice-by-Justice review of Gall and Kimbrough
• FSG are truly advisory (even in crack cases), but what about....
• Judicial reactions, formal and informal, to Gall and Kimbrough
• The weighty guidelines question after Gall
• One (of many) tough questions after Gall and Kimbrough
• Is Kimbrough as big as Brown v. Board of Ed?

SENTENCING COMMISSION CRACK RETROACTIVITY AND COMMENTARY

• A preview of USSC crack retroactivity vote
• USSC unanimously votes to make new crack guidelines retroactive...
• Official USSC press release on crack retroactivity
• USSC's "Reader-Friendly" version of retroactivity amendment
• Some legal particulars around crack retroactivity implementation
• Latest crack retroactivity FAQ from FAMM
• "Give them McDeath, not McLiberty"

NEW JERSEY DEATH PENALTY ABOLITION DECISION

• New Jersey on path to kill its moribund death penalty
• NJ legislature passes bill to abolish state's death penalty
• Media wonders "what if we can no longer obsess about the death penalty"

CLEMENCY DECISIONS AND COMMENTARY

• A new batch of Bush pardons and a crack commutation
• Another bipartisan call for President Bush to commute border agent sentences
• Republican Kentucky Gov. grants many pardons and commutations

NOTABLE INDIVIDUAL SENTENCING DECISIONS

• Michael Vick gets 23 months in prison
• Conrad Black gets 78 months (after a favorable guideline ruling)
• Scooter Libby drops appeal ... is a holiday pardon on the way?
• SCOTUS also rules for the defendant in Watson
• Sixth Circuit affirms 1,772-month over Eighth Amendment challenge

Set your DVRs for "The Trials of Darryl Hunt"

A favorite reader reminded me than tonight at 8pm is the HBO premiere of the "The Trials of Darryl Hunt," an award winning documentary about a wrongful conviction in North Carolina.  Here is a snippet from HBO's synopsis of the movie:

In 1984, Deborah Sykes, a young white newspaper reporter, was assaulted, raped, sodomized and stabbed to death just blocks from where she worked in Winston-Salem, North Carolina.  Though no physical evidence implicated him, Darryl Hunt, a 19-year-old black man, was ultimately convicted of the crime and sentenced to life in prison.

Ten years later, DNA testing proved that Hunt did not rape Sykes, and cast serious doubts on his involvement in her murder, but he spent another decade behind bars for a crime he did not commit. The eye-opening HBO documentary THE TRIALS OF DARRYL HUNT tells his riveting story — and the story of those who fought to clear his name.

More than a decade in the making, Ricki Stern and Annie Sundberg's THE TRIALS OF DARRYL HUNT examines a community and criminal justice system subject to racial bias and tainted by fear. Hunt was charged with Deborah Sykes' murder largely on the strength of an eyewitness identification by a former Ku Klux Klan member, and convicted by a jury of 11 whites and one black.  It wasn't until 2004, through the help of an investigative series by Winston-Salem journalist Phoebe Zerwick, that he was finally cleared.

Over that 20-year span, his defense attorneys and public supporters never stopped fighting for him. In February 2007, the city of Winston-Salem compensated Hunt $1.65 million for his wrongful conviction and incarceration, and he also received $358,545 in compensation from the state of North Carolina.

Told from the point of view of the principal subjects — Mark Rabil, the unyielding defense attorney, and Hunt, the wrongfully convicted man — the film challenges the assumption that all Americans have access to unbiased justice.  Hunt's real-life courtroom drama reflects systemic issues of broad national concern: the liabilities of cross-racial eyewitness identification, prosecutorial misconduct, inexperienced defense attorneys assigned to capital cases, racial bias in death penalty cases, and errors in police procedure....

As Hunt's story unfolds, it becomes a textbook example of how the presumption of innocence can be subverted when a city's need to solve a gruesome crime, fed by sensational media coverage, leads to a rush to judgment that validates a flimsy case. In addition to clearing their own client, the defense team is ultimately instrumental in identifying the real killer, who is now behind bars.

Busy non-capital sentencing times

January has already been quite a sentencing month.  Though death penalty issues are capturing a lot of attention (details here and here and here), the sentencing news has been dynamic on many fronts.  Because I am always eager to ensure capital stories do not eclipse other developments, here is a recap of some of this month's non-capital highlights:

SCOTUS DEVELOPMENTS AND COMMENTARY

• My effort to help with the SCOTUS docket problem
• The wait for Cunningham continues
• Speculating about Cunningham's composer
• CJ Roberts and sentencing law: a series
• CJ Roberts and sentencing law: the virtues (and vices?) of consensus

BOOKER DEVELOPMENTS AND COMMENTARY

• Who will be supporting the government in Claiborne and Rita?
• NLJ coverage of Patrick Lett appeal
• Report on USSC public hearing
• Judge Gertner keeps contributing to a post-Booker common law
• Sentencing federalism: Judge Weinstein on state-federal disparity

STATE SENTENCING DEVELOPMENTS AND COMMENTARY

• A push for a sentencing commission in California
• Strong commentary on California reforms and the incarceration bias
• When tough-on-crime bills come due
• Calls for a sentencing commission in Colorado

SEX OFFENDER DEVELOPMENTS AND COMMENTARY

• First(?) test of the new federal crime for failing to register as a sex offender
• Another (ineffective?) sex offender restriction
• NPR story about elderly sex offender prisoners
• Potent commentary on the Genarlow Wilson case

OTHER SENTENCING DEVELOPMENTS AND COMMENTARY

• Seeking information on state restrictions on clemency
• An early sentencing take on the Libby trial
• Is going to state prison good for your health?
• Interesting federal focal point for pardon/clemency debate
• Recommended reading

Holiday season highlights

With nearly everyone now back to the grind at the close of the holiday season, I cannot help but review some of the notable sentencing highlights over the last two weeks.  A complete review, is available through these weekly archives, but these posts were among my favorite and/or generated the most comments:

REVIEW AND REFLECTION POSTS

• Top 10 sentencing stories from 2006
• A personal sentencing year in review
• Branch-by-branch sentencing stories to watch in 2007

BOOKER REASONABLENESS DEVELOPMENTS AND COMMENTARY

• My friendly efforts in Claiborne and Rita
• All the amazing top-side briefs in Claiborne and Rita
• The stunning data on circuit reasonableness decisions
• Third Circuit karate chops the parsimony provision [update: and so does the Fourth Circuit]
• An eventful holiday week in the circuits

LETHAL INJECTION DEVELOPMENTS AND COMMENTARY

• Isn't it finally time for Congress to do something about lethal injection problems?
• Who will demonstrate lethal injection leadership?
• Calling out the Sixth Circuit for making a capital mess
• Is it time to seriously consider alternatives to lethal injection?
• Commentaries about lethal injection mess
• Seeking balanced scholarly wisdom on lethal injection mess

GEORGIA WILSON CASE DEVELOPMENTS AND COMMENTARY

• A Georgia case calling for executive clemency?
• Provocative questions about Georgia sentencing injustice
• Should the prosecutor request clemency for Genarlow Wilson?
• NYT adds to chorus calling for Genarlow Wilson to be freed

OTHER DEVELOPMENTS AND COMMENTARY

• The right's prison conversion
• Shouldn't we be much, much tougher with drunk drivers?
• Strong editorial against residency restrictions
• Examining crack sentencing in the new Congress
• Schwarzenegger's plan to reform California's prison problems

Top 10 sentencing stories from 2006

Generally speaking, 2006 was a much calmer year for sentencing developments than 2004 (discussed here) and 2005 (reviewed here and here).  Nevertheless, the year brought plenty of eventful sentencing stories, and below I provide my take on the top 10. 

10. The paucity of "tough-on-crime" politicking.  Reports of rising crime rates and a Republican party with few good election themes had me expecting "tough-on-crime" political rhetoric throughout the election season.  But this political dog did not bark, perhaps because Democrats have been consistently "tough" or perhaps because Republicans have found a new prison religion.

9. Continued rise in US incarceration.  Though the politics of crime may no longer be out-of-whack, the impact of 20 years of tough-on-crime attitudes continued to be seen in record incarceration rates and overcrowded prisons in state after state.  In California, the situation has gotten so bad, some sensible reform might even emerge (details here and here).

8. High-profile white-collar sentencings.  Defendants Jack Abramoff, Bernie Ebbers, Andrew Fastow, Jamie Olis, George Ryan and Jeff Skilling all made sentencing headlines this year.  Interestingly, Andrew Fastow and Jamie Olis got the same sentence, but the others' sentences were all over the map (and Ken Lay missed the sentencing fun by dying).  White Collar Crime Prof Blog has other related year-end highlights here.

7. Continued decline of death.  As perhaps spotlighted by Moussaoui escaping the death penalty, there was more mounting evidence that the death penalty is continuing to die a slow death.  In 2006, there was another reduction in the number of death sentences and in the number of executions. (This DPIC report covers this story from all the angles.)

6.  More discussion of executive clemency.  Though notably grants of clemency remained rare in 2006, clemency issues continued to garner much attention.  Ken Starr played a high-profile role in a California clemency request, Maryland's out-going governor keep using this historic power.  Also, chief executives in Ohio, South Dakota, and Virginia put off scheduled executions for various reasons. 

5.  Stability in Supreme Court Sixth Amendment doctrine.  The addition of two new Justices could have prompted another round of Apprendi mania.  But, after 2004 brought Blakely, and 2005 brought Booker, 2006 lacked a major Sixth Amendment ruling because the Justices avoided cert on various issues and disposed of cases like Recuenco in disruption-avoiding ways.  However, as #3 below spotlights, 2006 may have been the calm before the storm...

4.  Stability in the federal sentencing system.  Nearly everyone (except me) predicted that Congress would respond legislatively to Blakely and Booker.  But, despite some posturing about a Booker fix, the Booker remedy remained in place as circuits resolved an array of post-Booker sentencing questions (almost always against defendants).  However, as #3 below spotlights, 2006 may have been the calm before the storm...

3.  Brewing instability for 2007.  The Supreme Court is poised to issue a number of major sentencing rulings in the first half of 2007.  Cunningham could (and likely will?) greatly impact the application of Blakely in the states (details here), and Claiborne and Rita could (and likely will?) greatly impact the application of Booker in federal courts (details here).  In addition, at least a few elected officials in other branches seem eager to disrupt some sentencing status quos.

2.  More sex offender mania and some pushback.  The severity and creativeness of sentencing for sex offenders reached new heights in 2006.  This category archive and the new blog Sex Crimes document that nearly every jurisdiction in the country was dealing with legislation or litigation involving sex offenders.  And though getting tougher remained the chief talking point, concerns about the impact of broad residency restrictions or severe mandatory sentences started to garner more attention.

1.  The lethal injection scrummages.  Karl Keys here provides a great account of "The Year of the Needle,"  and DPIC has kept this page updated with all the latest lethal injection developments.  In practical terms, lethal injection problems have disrupted the application of the death penalty far more than innocence concerns or any other issue.  The Supreme Court jump started this issue in January through its work in Hill v. Crosby, and December brought  moratoria in the two states — California and Florida — with the largest death rows.  In addition, nearly a dozen other jurisdictions have had executions blocked or delayed because of lethal injection issues.

Whew!  Quite a year.  Thoughtful readers, did I forget anything?

A personal sentencing year in review

In a future post, I will review the major sentencing highlights of 2006.  Here I start my reflective blogging by reviewing my sentencing scholarship and related activities for the year (roughly in chronological order with links to posts with more information).

Major Articles

• Conceptualizing Booker
• Tweaking Booker: Advisory Guidelines in the Federal System
• Finding Bickel Gold in a Hill of Beans
• Making Sentencing Sensible (with Stephanos Bibas)

Major Commentaries

• Reasoning Through Reasonableness
• Perspectives on Booker's Potential
• Now What? The Post-Booker Challenge for Congress and the Sentencing Commission
• The Real (Sentencing) World: State Sentencing in the Post-Blakely Era (with Steve Chanenson)

Major Amicus Efforts

• Crack sentencing in many circuits
• Reasonableness review in the Ninth Circuit
• Reasonableness review of veteran's variance
• Claiborne and Rita: Reasonableness review in the Supreme Court

Journal Issues

• OSJCL Issue 3.2: The Mind of a Child
• OSJCL Issue 4.1: Blakely in the States

• FSR Issue 18.2: Defense Perspectives on the Post-Booker World
• FSR Issue 18.3: Taking Stock a Year after Booker
• FSR Issue 18.4: Sentencing at the Supreme Court
• FSR Issue 18.5: Toward Real Reform: Model Federal Sentencing Guidelines 
• FSR Issue 19.1: Victims and Sentencing I

Of course, I have also done more posts than I can count on this blog and also started a new group blog, Law School Innovation.  And, speaking of blogs, I also wrote this article, "Scholarship in Action: The Power, Possibilities, and Pitfalls for Law Professor Blogs," as part of this year's Harvard Law School symposium, "Bloggership: How Blogs are Transforming Legal Scholarship Conference."

A December to remember

As if October and November weren't exciting enough (as detailed here and here and here), this month has had nearly a full year's worth of notable sentencing events.  Of course, this month is only half over and, among other coming events, tomorrow brings the top-side briefs in the Claiborne and Rita cases (background here).  Nevertheless, since some are already celebrating Festivus, I could not help doing a mid-month review of sentencing highlights:

LETHAL INJECTION DEVELOPMENTS AND COMMENTARY

• Major California ruling on lethal injection protocol
• Governor Jeb Bush orders moratorium after botched execution
• An ugly (and fitting?) end to the capital year
• Isn't it finally time for Congress to do something about lethal injection problems?
• Who will demonstrate lethal injection leadership?

OTHER DEATH PENALTY DEVELOPMENTS AND COMMENTARY

• Recapping the capital year
• All the death data
• Major capital ruling from en banc Fifth Circuit
• Crazy capital developments in two states
• Executions and clemency in Ohio

SUPREME COURT DEVELOPMENTS AND COMMENTARY

• At least another month until Cunningham
• Slow-poke SCOTUS: a sign of division?
• SCOTUS takes up three new criminal cases
• Solving the SCOTUS docket mystery
• Additional SCOTUS docket dissection
• Recapping the SCOTUS docket discussion

BOOKER DEVELOPMENTS AND COMMENTARY

• What wrong with equitable Booker retroactivity in the Ninth Circuit?
• Laughing all the way to the (en) banc after Booker
• Seventh Circuit upholds another large upward variance
• Eighth Circuit follows the herd on crack sentencing
• Ninth Circuit decides to punt reasonableness en banc
• What the latest USSC data reveal
• Shouldn't express statutory text trump perceived policy?

ALTERNATIVE SENTENCING DEVELOPMENTS AND COMMENTARY

• The virtues of faith-based prisons
• Another shame(ful?) sentencing example
• Opposition to Iowa's residency restrictions
• Is the future parole with GPS and other techno-reentry devices?

A week+ to remember

As if October wasn't exciting enough (as detailed here and here), the first part of November has produced many memorable sentencing moments.  Here are just some of the highlights:

ELECTION-RELATED SENTENCING AND COMMENTARY

• How could and will this election impact federal sentencing policy?
• A sentencing view of election day
• Figuring out election results for sentencing fans
• The big other branch questions after the election
• FAMM's view of the new political lanscape

CLAIBORNE AND RITA DEVELOPMENTS AND COMMENTARY

• SCOTUS to take up Booker reasonableness!!
• SCOTUS Booker questions presented ... and more questions
• How many amici briefs will there be in Claiborne and Rita?
• How do Cunningham and Claiborne and Rita intersect?
• The facts and decisions in Claiborne and Rita
• The district court sentencing in Claiborne and cert briefing
• Lovely Rita, SCOTUS case...

OTHER SCOTUS SENTENCING DEVELOPMENTS AND COMMENTARY

• Oral argument in James ACCA case
• Oral argument in Burton retroactivity case
• Latest OSJCL issue with lots of sentencing coverage

SEX OFFENDER DEVELOPMENTS AND COMMENTARY

• California's new sex offender law enjoined
• More on Proposition 83 in California
• Is GPS tracking a better way?

OTHER BOOKER DEVELOPMENTS AND COMMENTARY

• Fanfan's guideline sentence affirmed by First Circuit
• A Booker pair from the Third Circuit
• Seventh Circuit reverses another below-guideline sentence
• Tenth Circuit affirms two above-guideline sentences
• Pondering the USSC's upcoming crack/powder hearing
• A prosecutorial perspective on Booker

DEATH PENALTY DEVELOPMENTS AND COMMENTARY

• Could Ohio and Wisconsin chart a path to a better death penalty?
• California's defense of its lethal injection protocol
• A new world of death penalty politics?
• More on the modern politics of the death penalty
• The federal death penalty in America's paradise

Scary(?) late October sentencing highlights

October has been quite a sentencing month.  I recapped the first half of the month here, and now below I have taken advantage of today's extra hour to provide highlights from the second half:

BOOKER CIRCUIT DEVELOPMENTS AND COMMENTARY

• My amicus effort to support our troops (includes reasonableness brief)
• What exactly is the Sixth Circuit rehearing in Vonner?
• On Vonner, the en banc Sixth Circuit reasonableness case
• "Today's [Booker] opinion from Judge Posner is so truly bizarre and harmful that it took my breath away."

OTHER FEDERAL SENTENCING DEVELOPMENTS AND COMMENTARY

• Members of Congress like judicial discretion ... when their friends are sentenced
• A great response to the recent up-tick in violent crime
• Crime, sentencing and politics
• Two decades of crack(ed) sentencing and More crack attention at two decades
• Why isn't there a prior good works guideline?

HIGH-PROFILE FEDERAL SENTENCING AND COMMENTARY

• High-profile terrorism lawyer to be sentenced today
• Lynne Stewart gets 28 months ... reasonable?
• Tastes great, more Skilling
• Skilling gets guideline sentence of 292 months

DEATH PENALTY DEVELOPMENTS AND COMMENTARY

• Remarkable circuit judge speech on capital punishment at mass
• The insidious distraction of innocence (and death)
• Tracking the execution rate as lethal injection scrummages rage on
• NJ Supreme Court decides on Atkins procedures
• Busy times for state killing

SEX OFFENDER DEVELOPMENTS AND COMMENTARY

• The scattered law of sex offender residency restrictions
• California's sex offender residency restriction proposition
• In the SL&P mailbag: a book on sexual predator laws
• A new legal attack against local sex offender residency restrictions
• Sex offenders as our modern day witches

A mid-month review in quite a month

October is probably my favorite month of the year, with lots of great sports, the days still warm and long enough for golf, and the beauty of the change of seasons.  Also, for law geeks, we get the start of a new SCOTUS term and the run-up to an election.  This October has not disappointed so far, and below are just some of the highlights of all the sentencing action:

SUPREME COURT CUNNINGHAM DEVELOPMENTS AND COMMENTARY

• Cunningham looks to be another state case about federal sentencing
• Reflections on the Cunningham oral argument
• Cunningham predictions, anyone?
• What will Alito and Roberts do in Cunningham?
• OSJCL symposium on state sentencing after Blakely
• Proofs of Making Sentencing Sensible

OTHER SUPREME COURT DEVELOPMENTS AND COMMENTARY

• Is a Booker reasonableness cert grant on the horizon?
• Victims' rights and Wednesday's other SCOTUS case
• SCOTUS grants cert to supervise Texas capital work
• Still more Texas capital clean-up for SCOTUS
• Read all the Blakely retroactivity SCOTUS arguments
• SCOTUS opening day fever ... read it!

BOOKER CIRCUIT DEVELOPMENTS AND COMMENTARY

• Is the Sixth Circuit's Vonner a goner?
• Oral argument in Ninth Circuit en banc reasonableness cases
• Second Circuit finds above-guideline sentence reasonable
• Tracking reasonableness review outcomes ... final update?
• Are more than 99.9% of guideline sentences reasonable?

OTHER FEDERAL SENTENCING DEVELOPMENTS AND COMMENTARY

• A terrific district court opinion on acquitted conduct
• Representative Ney cuts a deal for 27 months imprisonment
• Another Enron cooperator gets shortened sentence
• Early reactions to topless guidelines bill

DEATH PENALTY DEVELOPMENTS AND COMMENTARY

• Eleventh Circuit shuts down another lethal injection litigant
• Regulating executions in California 
• Uncovering lethal injection realities

OTHER SENTENCING DEVELOPMENTS AND COMMENTARY

• What punishments really undermine human dignity?
• Shaming punishments and communitarianism
• Ninth Circuit upholds 159-year mandatory term of imprisonment
• California's state of (prison) emergency
• Important new report on felony disenfranchisement

Summer sentencing highlights

Labor Day serves as the unofficial end of summer, so I thought I might review some of the biggest summer sentencing highlights.  In the recap below, I have excluded the end-of-Term action from the Supreme Court in late June, though I start with some notable post-term analysis and developments:

SUPREME COURT DEVELOPMENTS AND COMMENTARY

• A criminal start to OT '06 for SCOTUS
• Biggest SCOTUS death penalty developments
• Biggest SCOTUS non-capital sentencing developments
• When and how should SCOTUS take up reasonableness review?
• Great new FSR issue for SCOTUS followers
• New Justices and the evolution left on criminal justice matters

BOOKER CIRCUIT DEVELOPMENTS AND COMMENTARY

• Tracking reasonableness review outcomes ... final update?
• Taking stock of post-Booker circuit splits
• The central flaw in reasonableness review
• Crack reasonableness review should be as easy as 1, 2, 3
• Third Circuit specifies issues for Grier en banc
• Still more reasonableness fun from the Sixth Circuit
• Seventh Circuit holds ex post facto no longer applicable to guideline changes after Booker
• Ninth Circuit clarifies en banc reasonableness issues
• YLJ Pocket Part review of appellate review after Booker

BOOKER DISTRICT DEVELOPMENTS AND COMMENTARY

• Latest USSC data: "traditional" departures making a comeback
• Another extraordinary magnum opus from Judge Young
• Judge Adelman in fine Booker form
• More buzz about record variance in Adelson
• Fascinating developments in the Olis case
• Extraordinary paper on post-Booker sentencing

OTHER BOOKER DEVELOPMENTS AND COMMENTARY

• USSC releases notice of proposed priorities
• News on the Booker fix front
• Will DOJ make public is new fast-track policy?
• Sincere questions about acquitted conduct sentencing
• Constitution Project urges post-Booker reforms

DEATH PENALTY DEVELOPMENTS AND COMMENTARY

• Lethal injection litigation creates de facto moratorium in Ohio and...
• Reviewing the lethal injection scrummages
• Missouri considering use of gas chamber
• Is capital punishment for drunk driving morally required?
• A medical perspective on the lethal injection mess
• Should executions be more public?

OTHER REVIEWS

• Archive of recap posts
• Archive of recommended reading

Recapping (un)reasonable sentencing times

Since my last review of sentencing highlights, circuit courts struggling with Booker reasonableness review continue to be the big story.  But, as detailed below, August has been a hot month in other sentencing arenas as well.  Here are some abridged highlights:

BOOKER CIRCUIT DEVELOPMENTS AND COMMENTARY

• Ninth Circuit clarifies en banc reasonableness issues
• Amicus brief in Third Circuit case on burdens of proof
• Taking stock of post-Booker circuit splits
• The central flaw in reasonableness review
• When and how should SCOTUS take up reasonableness review?
• Booker downloads of the week
• Crack reasonableness review should be as easy as 1, 2, 3
• What a Booker month in the circuits

OTHER BOOKER DEVELOPMENTS AND COMMENTARY

• What's going on behind closed doors at the US Sentencing Commission?
• Nice Slate commentary on crack sentencing
• Sad proof of post-Booker judicial intimidation
• Extraordinary paper on post-Booker sentencing

BLAKELY DEVELOPMENTS AND COMMENTARY

• Petitioner's reply brief in Cunningham
• Another strong Blakely opinion from Alaska
• An update on Blakely in Minnesota

DEATH PENALTY DEVELOPMENTS AND COMMENTARY

• Is capital punishment for drunk driving morally required?
• Missouri considering use of gas chamber
• Oklahoma tweaking its lethal injection protocol
• Executions making a comeback
• The inconsistent pace of executions

OTHER DEVELOPMENTS AND COMMENTARY

• Seeking surveys of sentencing attitudes
• Maryland governor taking clemency responsibility seriously
• President Bush issues more minor pardons
• Meth offender registries all the rage
• ABA's Criminal Justice sentencing symposium
• A criminal start to OT '06 for SCOTUS

Booker downloads of the week

Last week's sentencing highlights (and lowlights) included these Booker items not to be missed:

• Amy Baron-Evans' extraordinary memorandum on post-Booker sentencing here.

• The Second Circuit's troublesome work on crack sentencing here (and critiqued here).

• The Fifth Circuit's intriguing approach to reasonableness review in Tzep-Mejia here.

• The Sixth Circuit's thoughtful sparring over reasonableness review here and here.

And Booker fanatics might also want to check out some of my recent Booker commentaries:

• Who will be most sorry about Demaree?
• Crack reasonableness review should be as easy as 1, 2, 3
• Taking stock of post-Booker circuit splits
• When and how should SCOTUS take up reasonableness review?
• A criminal start to OT '06 for SCOTUS
• What a Booker month in the circuits

Hot sentencing start to the dog days

August is the month with the dog days of summer, but this review of recent sentencing highlights shows that it is not just the temperature that's hot:

BOOKER CIRCUIT DEVELOPMENTS AND COMMENTARY

• Major split Second Circuit ruling on reasonableness
• Third Circuit specifies issues for Grier en banc
• Eleventh Circuit deepens Rule 32(h) circuit split
• Tracking reasonableness review outcomes ... final update?

OTHER BOOKER DEVELOPMENTS AND COMMENTARY

• Another extraordinary magnum opus from Judge Young
• Dual prosecution, federalism and sentencing
• More buzz about record variance in Adelson
• USSC releases notice of proposed priorities
• News on the Booker fix front

DEATH PENALTY DEVELOPMENTS AND COMMENTARY

• Lethal injection litigation creates de facto moratorium in Ohio and...
• Big day for Ohio death row defendants
• Some lethal injection headlines

OTHER DEVELOPMENTS AND COMMENTARY

• New study on victim impact testimony
• Great new FSR issue for SCOTUS followers
• New Harvard CR-CL issue on prison litigation
• Hoping for more buzz on Senate crack sentencing bill
• More on Supermax, human dignity, and public safety

Week in review

Though a short week because of the holiday, the start of July still had some sentencing highlights:

SUPREME COURT DEVELOPMENTS AND COMMENTARY

• Biggest SCOTUS death penalty developments
• Biggest SCOTUS non-capital sentencing developments

BOOKER DEVELOPMENTS AND COMMENTARY

• Will there be any Booker fireworks this summer?
• YLJ Pocket Part review of appellate review after Booker
• Eleventh Circuit reverses below-guideline sentence
• Tracking reasonableness review outcomes

OTHER DEVELOPMENTS AND COMMENTARY

• Considering castration for certain sex offenders
• Reviewing the lethal injection scrummages
• Liberty versus security in the war on ... sex offenders
• Ninth Circuit says CVRA does not give victim right to PSR

Recapping a long weekend

As I recover from a great fireworks show last night, I found it useful to review blog coverage since the start of joyfully long holiday weekend:

SUPREME COURT DEVELOPMENTS AND COMMENTARY

• Biggest SCOTUS death penalty developments
• Biggest SCOTUS non-capital sentencing developments
• A holiday retrospective on Blakely fireworks
• If you can't get enough SCOTUS blogging...

DEATH PENALTY DEVELOPMENTS AND COMMENTARY

• The sad realities of the modern death penalty
• A medical perspective on the lethal injection mess
• Should executions be more public?

BOOKER DEVELOPMENTS AND COMMENTARY

• Judge Adelman on variances from career offender guideline
• Fourth Circuit finds fast-track variance unreasonable
• And the Booker beat goes on the in circuits
• Tracking reasonableness review outcomes

SEX OFFENDER DEVELOPMENTS AND COMMENTARY

• Liberty versus security in the war on ... sex offenders
• Missouri Supreme Court addresses sex offender registry

Off to the coast...

My summer Booker speaking tour takes me to San Diego later today, so posting may be light through the weekend (unless SCOTUS makes some big sentencing news on Thursday). 

As I head out, let me remind everyone that I would now like to start receiving contributions to the "Blakely at two" blog forum I proposed in this post.  A terrific group of folks have already expressed interest in this forum, and I have now created a separate e-mail — [email protected] — to which folks should send proposed posts about the state and fate of Blakely two years later.

On the road again...

Proving yet again that I have my priorities straight, I am soon hitting on the road to visit my dad (and have quality time on a golf course).  Blogging may be light through Father's Day, though my inner law geek will probably force me on-line if we get another big SCOTUS day on Thursday.  For fellow law geeks, here is a review of some highlights from what has already been a hot sentencing month:

SUPREME COURT DEVELOPMENTS AND COMMENTARY

• Supreme Court to take up Blakely retroactivity!
• Could they, would they, should they ... declare Blakely retroactive?
• A brief account of House and Hill
• A Hill of beans
• Insights on Hill from THE expert
• Some insider perspective on House
• A cert grant as the biggest(?) SCOTUS sentencing news
• The "prior conviction" sparring, Harris and Roe v. Wade

BOOKER CIRCUIT DEVELOPMENTS AND COMMENTARY

• Busy Booker times in the circuits
• A Cagey view of Booker
• Strong Booker work from the Sixth Circuit
• Tracking reasonableness review outcomes
• Booker in the Circuits index

OTHER BOOKER DEVELOPMENTS AND COMMENTARY

• Sensenbrenner Booker fix drafted
• New Booker data shows more within-guideline sentences
• More juicy data from the USSC
• Reflection on a (record?) variance
• Jamie Olis, loss calculations, and white-collar sentencing after Booker
• Encouraging a critical race examination of post-Booker developments

SENTENCING PROCEDURE DEVELOPMENTS AND COMMENTARY

• Former Altanta mayor sentence increased on acquitted conduct
• Major Third Circuit ruling on post-Booker burden of proof
• More on Grier and the post-Booker burden of proof
• Ninth Circuit adds nuance to post-Booker burdens of proof

DEATH PENALTY SENTENCING DEVELOPMENTS AND COMMENTARY

• ABA calls for death penalty moratorium in Alabama
• Atkins may still get the benefit of Atkins
• Scheduled Virginia execution delayed by Governor

DRUG SENTENCING DEVELOPMENTS AND COMMENTARY

• Crackin' good arguments, Gromit!
• Another crackin' argument report
• Reflecting 20 years after the crack panic
• Noticing different legislative reactions to meth and crack
• Significant meth report from The Sentencing Project

SEX OFFENDER SENTENCING DEVELOPMENTS AND COMMENTARY

• The latest on the death penalty for child rape
• Every step you take, every move you make...
• New litigation over sex offender restriction

OTHER SENTENCING DEVELOPMENTS AND COMMENTARY

• Crime rates jump according to FBI stats
• Michigan Supreme Court dodges application of Blakely
• The sorry state of California's prisons
• Major report on prison failings

Busy Booker times in the circuits

As this post over at SCOTUSblog highlights, the Supreme Court is likely to be making lots of news throughout the rest of June.  But, as detailed in the posts listed below, the federal circuit courts have been very active on Booker fronts the last couple weeks.

Notable Booker rulings on reasonableness review:

• Two more reasonableness wins for the government in the First Circuit
• Fifth Circuit reverses another below-guideline sentence as unreasonable
• Strong Booker work from the Sixth Circuit
• Lots of Eighth Circuit sentencing action
• Important Tenth Circuit work on reasonableness
• Eleventh Circuit affirms above-guideline sentence
• Two more notable reasonableness wins for prosecutors

Notable Booker rulings on other issues:

• Major Third Circuit ruling on post-Booker burden of proof
• More on Grier and the post-Booker burden of proof
• Ninth Circuit adds nuance to post-Booker burdens of proof
• Report on Second Circuit crack reasonableness argument
• Crack(ed) dicta from Judge Easterbrook for the Seventh Circuit

Readers interested in circuit Booker action should also check out my (already dated) tracking of reasonableness outcomes, and also regularly check in on all of the federal defender blogs where I have seen lots of commentary on some cases noted above and others.

A non-lethal weekly recap

As detailed in this post, the most intriguing sentencing action this week flowed from the lethal injection litigation.  Nevertheless, as the non-lethal list below documents, there was also plenty of other notable sentencing developments:

SCOTUS DEVELOPMENTS AND COMMENTARY

• The criminal justice test for Roberts' rules of order
• Minimal mid-May SCOTUS action in the criminal justice arena

BOOKER DEVELOPMENTS AND COMMENTARY

• Seventh Circuit deepens splits over post-Booker sentencing
• A revised draft of "Conceptualizing Booker"
• What is the USSC doing on the Booker front now?
• New ACS issue brief on crack sentencing disparity
• More friendly advice on crack sentencing for Third Circuit
• Ninth Circuit emphasizes importance of 3553(a)
• Lots of intriguing reasonableness action in the circuits

STATE SENTENCING DEVELOPMENTS AND COMMENTARY

• Major report on women in prison
• Intriguing sex offender collateral consequence
• Interesting piece on California capital politics
• Informative articles on parole realities

OTHER SENTENCING DEVELOPMENTS AND COMMENTARY

• Latest issue of FSR off to press
• Spotlight on victim impact testimony at sentencing
• Notable conference on race and criminal justice
• A long time to survive federal prison for first Survivor

Recapping another amazing sentencing week

With an afternoon off-line in my offing, I will put the wraps on another amazing week of sentencing developments with this early week-in-review post.  Have a great weekend (and don't forget mom).

SCOTUS DEVELOPMENTS AND COMMENTARY

• First set of briefs in Cunningham
• What do Justices Alito and Roberts think about bright lines?
• Time to take some more Blakely and Booker cases....
• Reading new Justice tea leaves
• The sad realities of SCOTUS defense advocacy

DEATH PENALTY DEVELOPMENTS AND COMMENTARY

• The partial de facto moratorium created by Hill
• Another state halts an execution due to lethal injection litigation
• Fascinating concurrence in Ninth Circuit capital case
• Interesting analysis of Moussaoui verdict

BOOKER DEVELOPMENTS AND COMMENTARY

• Policy judgments at federal sentencing: aren't they inevitable and mandated by Congress?
• More fast-track work from Judge Adelman
• First Circuit finds huge upward variance unreasonable
• A reason-less application of reasonableness
• Third Eighth Circuit reversal of downward variance this week
• Ninth Circuit discusses fast-track disparity
• Important (unpublished) 11th Circuit decision affirming large downward variance

STATE SENTENCING DEVELOPMENTS AND COMMENTARY

• Arizona Supreme Court upholds 200-year sentence for possessing child porn
• What ever happened to state constitutional law, textualism, and libertarianism?
• Washington Supreme Court address Blakely and minimums
• You make the call: sentencing in The Station nightclub fire
• Four-year sentence in The Station nightclub fire
• A high sentence for a slice of Big Love

OTHER SENTENCING DEVELOPMENTS AND COMMENTARY

• US leads the world ... in locking people up
• Record sentence for spam crime
• Interesting examination of faith-based prison movement