Sentencing Law and Policy

Spring break and priorities

To prove that I still have my priorities straight, I am soon heading to the airport to start my Spring Break trip down to Florida for a very long weekend of family and fantasy baseball fun.  Saturday is my fantasy baseball league's draft in Tampa. Recommendations for sleepers and/or great keeper prospects would be greatly appreciated.  Also, hoping to change my recent fortunes (I've not won in five years), I am thinking about changing my team name this year.  Ideas for clever new team names would also be welcome. 

Though I expect to be able to get on-line from my hotel, I also expect blogging to be very light through the middle of next week.  For those interested in using this blogging breather to catch up on recent happenings, I have recapped some of March's Booker and Blakely highlights below.

MAJOR BOOKER FIX DEVELOPMENTS AND COMMENTARY

• The USSC Booker report is back (with corrections)
• Initial reflections on the USSC Booker report
• A viewer's guide to Booker House hearing
• Following the standard script at House hearing
• Reviewing a week dominated by Booker talk

MAJOR BOOKER DECISIONS AND COMMENTARY

• Judge Presnell on crack/powder disparity
• Eighth Circuit affirms another lengthy sentence for an uncharged murder
• Eighth Circuit reverses another below-guideline sentence BUT also finds a within-guideline sentence unreasonable
• First Circuit speaks, en banc, on post-Booker sentencing and review
• Reasonableness review round-up . . . calling Justice Scalia

MAJOR STATE BLAKELY DEVELOPMENTS AND COMMENTARY

• Ohio applies Blakely and the Booker remedy!
• En banc Pennsylvania court upholds state sentencing scheme over Blakely challenge
• Arizona Supreme Court addresses "admissions" for Apprendi/Blakely purposes
• Minnesota urging SCOTUS to embrace offense-offender Blakely distinction
• Opposition to cert petition urging offense-offender Blakely distinction

Whew, what a Wednesday

I predicted Booker March Madness would kick in this week, and Wednesday surely lived up to this billing.  Here are the day's highlights:

Booker hearing developments:

• Updates on Booker hearings
• Let's get ready to Booker rumble...
• Quotes from Sensenbrenner press conference
• Sensenbrenner takes the gloves off ... will the judiciary fight back?

Other notable developments:

• Constitution Project releases report on sentencing reforms
• Why did Justice Alito withdraw from Sentencing Initiative?
• Ohio AG response to reconsideration motion in Foster
• Capital sentencing news and notes
• Eighth Circuit en banc on DWI as violent felonies
• Who says crime doesn't pay?

Taking stock of recent developments and gearing up

This coming week will be filled with lots of Booker buzz (along with, of course, bracket buzz).  I am especially looking forward to the hearing in the House Judiciary Committee and the Booker report from the Sentencing Commission (basics here).  Those gearing up for all the Booker fix fun will find a lot of links at the end of this post.  But, as detailed below, a lot more than Booker buzz has been going on since my last topical review of sentencing highlights:

SCOTUS DEVELOPMENTS AND COMMENTARY

• SCOTUS grants cert in California Blakely case
• Cunningham cert grant: taking stock and reading up
• What of the lack of re-argument in the SCOTUS capital cases?
• Innocence claims take a hit in Guzek

OTHER STATE BLAKELY DEVELOPMENTS AND COMMENTARY

• Minnesota urging SCOTUS to embrace offense-offender Blakely distinction
• En banc Pennsylvania court upholds state sentencing scheme over Blakely challenge
• Ohio applies Blakely and the Booker remedy!
• Fascinating Foster follow-up on Ohio sentencing reforms
• Ohio defenders seek resconsideration of Foster's retroactive application

DEATH PENALTY DEVELOPMENTS AND COMMENTARY

• The lethal injection debate rages on
• The latest Death Row USA show reduced death sentences
• Federal executions stayed due to lethal injection concerns
• More on capital habeas reform in Patriot Act
• High costs of the death penalty
• Is capital punishment for repeat child molesters constitutional?

BOOKER FIX DEVELOPMENTS AND COMMENTARY

• Booker March madness set to begin with a hearing double-header
• Buzz about the House hearing on Booker
• Latest FSR Issue on post-Booker world
• Professor Bowman's latest fix on the post-Booker world
• My love letter to Booker?
• New batch of (old) post-Booker data
• Dead Booker walking?: disparity in theory and practice
• Dead Booker walking?: a "drift toward lesser sentences"
• Bad Booker fix arising?

BOOKER CASELAW DEVELOPMENTS AND COMMENTARY

• Reasonableness review round-up . . . calling Justice Scalia
• Yet another amicus crack at crack sentencing
• Reasonable complaints about reasonableness review
• Tracking reasonableness review outcomes
• Booker in the Circuits Index
• A high-profile case for sentencing based on acquitted conduct

Long weekend in review

Counting Friday afternoon as part of the long weekend, there has been a remarkable amount of sentencing activity that might (or might not) make our former Presidents proud.  Here are some topical highlights:

SCOTUS DEVELOPMENTS AND COMMENTARY

• Mark your SCOTUS calenders
• Exploring possibilities in the SCOTUS state Blakely cases
• What of the lack of re-argument in the SCOTUS capital cases?

BOOKER DEVELOPMENTS AND COMMENTARY

• Reasonableness review round-up . . . calling Justice Scalia
• A reasonableness double shot from the Fifth Circuit
• Tenth Circuit embraces presumption of reasonableness
• Plain error on plain error in the First Circuit?

DEATH PENALTY DEVELOPMENTS AND COMMENTARY

• Schwarzenegger denies clemency in Morales case
• Back to the lethal injection scrum in Morales
• Ninth Circuit rejects efforts to block California execution
• SCOTUS lets California execution go forward

OTHER DEVELOPMENTS AND COMMENTARY

• Teen crime, adult time in Colorado
• More on teen crime, adult time in Colorado
• A movie about the federal sentencing guidelines?
• New scholarly law blog on launchpad

More holiday season highlights

After having now watched over and over some great football highlights, I am inspired to assemble here some holiday season sentencing highlights.  As detailed below, the end of 2005 did not slow down the sentencing action in many areas:

STATE BLAKELY DEVELOPMENTS AND COMMENTARY

• The Blakely earthquake hits Vermont
• A Blakely threesome from the Oregon Supreme Court
• Reviewing Oregon's big Blakely rulings
• Blakely at 18 months: a recap of state high court rulings

BOOKER DEVELOPMENTS AND COMMENTARY

• Will it be a happy new year for Jamie Olis?
• Plea deal for Enron CAO Causey
• Sentencing notes on CJ Roberts' first year-end report
• Recent sentencing rulings in the circuits
• Guideline enhancement data from USSC
• Amicus brief in crack sentencing appeal

DEATH PENALTY DEVELOPMENTS AND COMMENTARY

• Too old and sick to die?
• The next high profile California capital case
• Perspective for another death penalty year
• A lesson in the death penalty, Texas style
• "The Eighth Amendment is a jurisprudential train wreck"

OTHER SENTENCING DEVELOPMENTS AND COMMENTARY

• A thorough review of GWB's pardon work
• The state of shaming punishments
• Making sure crime does not pay (in book profits)
• The importance and power of POs and PSRs

HIGHLIGHTS OF HIGHLIGHTS

• Gearing up for Alito hearings
• Holiday weekend highlights
• Major sentencing developments for first half of 2005
• Major sentencing developments for second half of 2005

Major sentencing developments for second half of 2005

My assembly (via posts of note) of sentencing highlights the first half of the 2005 was, not surprisingly, dominated by the Booker decision and its aftermath.  The highlights from the second half of 2005 show more variety, particularly because of the SCOTUS transitions:

JULY

• Justice O'Connor retiring; what will her replacement think of Harris and Almendarez-Torres?
• Considering O'Connor's capital sentencing legacy
• Judge Roberts round-up
• Huge Blakely day in North Carolina
• The evolution of white-collar sentencing
• Sentencing from the halls of Congress
• Judicial federalism: diverse state high court Blakely rulings
• Alabama House seeks mandatory castration(!) for certain sex offenders
• Iowa Supreme Court upholds broad sex offender residency restrictions
• Trying to parse the USSC's latest data

AUGUST

• An engaging (but incomplete) habeas debate
• Justice Stevens speaks out against death penalty
• Judge Roberts on capital punishment
• Roberts, the cert pool, and sentencing jurisprudence
• Pondering the next SCOTUS Blakely/Booker case
• DOJ's Orwellian defense of mandatory minimum guidelines
• Brave New Justice and sentencing issues
• Reefer madness in the 8th Circuit
• District court tonic for the Booker blues
• A post-Booker burden of proof primer

SEPTEMBER

• CJ Rehnquist has died
• The current SCOTUS sentencing head-count
• Roberts nominated to be Chief
• Can Roberts bring consensus to SCOTUS sentencing jurisprudence?
• Assailing the lack of criminal justice questions at the Roberts hearing
• FSR Issue asks: Is a Booker Fix Needed?
• Is the Booker remedy here to stay?
• Invigorating the sentencing process after Booker
• Some September sentencing highlights

OCTOBER

• Fantastic NY Times piece on lifers
• A bit of Booker fix buzz
• My Booker data "wish list"
• What will a Justice Harriet Miers mean for sentencing jurisprudence?
• Miers, religion, and criminal justice issues
• First opinion of Roberts Court is a win for a criminal defendant! On habeas!
• SCOTUS taking up Blakely harmless error issue!
• State Blakely mess: the split over Blakely's application to presumptive sentencing
• Does Blakely draw a bright line? What is that line?
• Miers is out, who's next?
• Alito it is ... this should get interesting

NOVEMBER

• Why some defendants hope Alito is like Scalia
• A terrific examination of Alito and criminal law
• American cultures of life and cultures of death
• Tenth Circuit argument in Angelos mandatory minimum case
• Did Texas execute an innocent man?
• More buzzing about possible wrongful execution(s)
• December dramas for the death penalty
• Ground zero for post-Booker crack/powder debate

DECEMBER

• Pondering Tookie's fate, Schwarzenegger's dilemma and punishment theory
• Schwarzenegger denies Tookie Williams clemency
• Death sentences continue to decline
• Further exploration of question "Is Capital Punishment Morally Required?"
• The number 1,000,000 in sentencing perspective
• Booker discussion topic: are departures obsolete?
• A Booker Festivus for the rest of us
• Recapping a busy first half of the last month of 2005
• More academic arguments for Blakely retroactivity
• Latest FSR issue on Blakely in the States
• Blakely at 18 months: a recap of state high court rulings

Major sentencing developments for first half of 2005

Last year I celebrated the close of 2004 with this narrative sentencing year in review.  Amazingly, 2005 has proven to be an even more dynamic and interesting sentencing year than 2004 (which I did not think was possible), and I am certain I cannot do it justice in a short narrative.  Instead, I will close out the year with a month-by-month post review of 2005 sentencing highlights (and lowlights).

As I started to assemble this list, I discovered that even abridged highlights from nearly two thousand posts in 2005 would run very long.  Thus, I have divided the list into two posts.  Below are highlights for the first half of the year; the second-half highlights will appear in a follow-up post:

JANUARY

• Suggesting sentencing resolutions
• Gonzales hearing highlights (torture-free)
• SCOTUS speaks: Booker and Fanfan have arrived!!
• Collected Booker commentary
• More collected Booker (and Wilson) commentary
• Always remember to show your work
• Requiring proof beyond a reasonable doubt in any legislative fix
• Is there a "new right" on criminal sentencing issues?

FEBRUARY

• The Booker battles: questions of perspective
• Ex post facto headaches from any legislative response to Booker
• Gearing up for Booker hearing week
• House hearing highlights
• Heading home after a great DC week (includes USSC hearing highlights)
• Sorting through the Circuit circus
• Songs in the key of 3553
• Criminal justice, constitutional law, federalism and hot button issues

MARCH

• SCOTUS declares unconstitutional juvenile death penalty in Roper
• More Roper thoughts and the development of state constitutional law
• Three-ring circus ... err, three-way circuit split
• SCOTUS rules in Shepard (and muddies the prior conviction waters)
• Summarizing Shepard (and seeking state insights)
• A potent argument for Apprendi's retroactivity
• State debates over whether to Blakely-ize or Booker-ize
• Booker and crack/powder cocaine sentencing

APRIL

• Shaming, remorse, apologies and victims
• Retroactivity contrasts and contentions
• Booker and Blakely stories shifting to warp speed
• Puzzled by Tennessee's Blakely waltz
• Details concerning the brewing Booker fix
• Questions about the brewing Booker fix
• Still more voices speaking out against brewing Booker fix
• Sentencing world in warp speed
• State of state Blakely fixes and high court rulings
• More evidence of the decline of death

MAY

• Sex (offenders) in the city
• Is the Booker plain error split now finally cert. worthy?
• Further reflections on burdens of proof and acquitted conduct
• Reasons for rooting for criminal justice federalism
• The waiting is the hardest part...
• DOJ planning national sex offender registry (note the copious comments)
• The Fool(ish bills) on the Hill
• SG is seeking cert. on plain error!
• A capital waste of time?

JUNE

• A quick sentencing perspective on a possible new Justice
• A Blakely blank spot in sentencing reform principles
• California Supreme Court dodges Blakely
• SCOTUS refuses to take on Booker plain error
• Not now or not ever on Booker plain error?
• AG Gonzales calls for a Booker fix
• Background on AG Gonzales' proposed Booker fix
• Questions about AG Gonzales' speech
• Initial end-of-Term reflections on criminal justice and sentencing

Holiday weekend highlights

Proving yet again that the calender does not slow down sentencing developments (or an obsessive blogger), here are some highlights from the long holiday weekend:

• The Blakely earthquake hits Vermont
• Interesting opinion on the right of victims to allocute at sentencing
• Christmas clemency and pardon stories
• Reviewing Alito's work in criminal cases
• Seeking end of year "best" "most" "top" ideas and nominations
• A Booker Festivus for the rest of us

Recapping a busy first half of the last month of 2005

This marks my 2500th post since I started this blog a little over 18 months ago, and if I had the time I might assemble a comprehensive greatest hits list.  (My first quaint post on Blakely — Blakely..... WOW!! — would surely make the list.)  But, this busy time of year, I barely have time to assemble just some of the highlights from the first few weeks of an exciting December in the world of sentencing:

STATE BLAKELY DEVELOPMENTS AND COMMENTARY

• Minnesota Supreme Court limits reach of "prior conviction" exception
• Indiana Supreme Court gives broad interpretation to prior conviction exception
• Great Alaska opinion on Blakely and consecutive sentencing
• More academic arguments for Blakely retroactivity
• Notable new paper on voluntary guidelines
• Latest FSR issue on Blakely in the States

BOOKER CIRCUIT DEVELOPMENTS AND COMMENTARY

• Further reports on 1st Circuit crack/cocaine argument
• Second Circuit upholds sentencing based on acquitted conduct
• Interesting Second Circuit ruling on use of unadjudicated juvenile conduct
• Fifth Circuit officially rejects retroactive application of Booker
• A reasonableness two for Tuesday from the 7th Circuit
• Eighth Circuit speaks to post-Booker reliance on hearsay at sentencing
• Big sentencing doings in the Ninth Circuit
• Tenth Circuit addresses Booker and fast-track issues
• Eleventh Circuit opines at length about post-Booker sentencing and review
• Two Booker pipeline cases of note from the DC Circuit

OTHER BOOKER DEVELOPMENTS AND COMMENTARY

• Interesting discussion of fast-track disparities
• Booker discussion topic: are departures obsolete?
• Interesting Olis developments
• A white-collar sentencing in scarlet and gray
• Interesting sentencing developments in HealthSouth case
• A more formal request for more post-Booker data
• Oh data, data, data, I now have lots of clay...

DEATH PENALTY DEVELOPMENTS AND COMMENTARY

• December dramas for the death penalty
• Capital reading to mark a "grand" milestone
• Debating religion and the death penalty
• Pondering Tookie's fate, Schwarzenegger's dilemma and punishment theory
• Schwarzenegger denies Tookie Williams clemency
• The death penalty debate continues on...
• New Jersey death penalty moratorium in the works
• White paper critical of Alito's death penalty work

OTHER SENTENCING DEVELOPMENTS AND COMMENTARY

• Important work on drug sentencing in New Jersey
• NJ Commission releases major report on drug-free zones
• New report on NY reform of Rockefeller drug laws
• In praise of Slate's recent sentencing coverage
• The number 1,000,000 in sentencing perspective