Sentencing Law and Policy

Legal Times year-end sentencing commentary

The latest issue of Legal Times, dated today, provides a Year in Review for 2005. The issue includes this group of commentaries asking "Have We Learned Anything?" in which "practitioners and professors look back at what the last 12 months have taught us."

I was kindly asked to comment on sentencing developments in 2005, and I wrote a short piece that runs under the title of "Same Old Sentencing."  Though you need a subscription to get access to the full commentary, the teaser at Legal Times highlights my theme:

As 2005 draws to a close, Douglas Berman points out a broader and perhaps more important lesson has emerged from the aftermath of U.S. v. Booker — namely that sentencing developments are often influenced more by sentencing culture than by sentencing doctrine.

Around the blogosphere

Even on the tail end of a long holiday weekend, the blogosphere provides plenty of interest for criminal justice fans:

• CrimProf Blog notes here that its own Mark Godsey will be on Larry King Live tonight at 9pm to talk about a remarkable DNA exoneration.

• White Collar Crim Prof Blog explores here whether, with a trial approaching, former Enron Chief Accounting Officer Richard Causey might be about to plead guilty.

• How Appealing links here to a number of interesting stories about death penalty developments in California.

• SCOTUSblog notes here that it has filed a petition seeking cert. on an interesting little sentencing issue (not involving Blakely/Booker) that has divided the circuits.

• Over at the Federal Defender Blogs there are a number of new interesting posts on recent circuit rulings, especially at the always active Ninth Circuit Blog.

I want to thank the acedemy, Themis, and...

I am flattered to discover that, over at the Blawg Review Awards 2005, I have been honored with an award for "Best Blawg by a Law Professor."  (Apparently, I am far more appreciated by Themis, the Goddess of Justice and Law who judged and decided these awards, than by the voters in the 2005 Weblog Awards for Best Law Blog.)

Of course, I am biased when I now say that folks behind the Blawg Review Awards 2005 are obvious geniuses.  Biased or not, I think the list of award-winning blawgs makes for a terrific reading list for the modern lawyer.  But it also revives my interested in creating some kind of BCS for blogs.

More great holiday sentencing reading

My sentencing reading list for the holiday break has included the Latest FSR issue on Blakely in the States and the great recent law review articles on the death penalty.  And now I see on SSRN that Michael M. O'Hear, who has been writing up a storm latety, has two interesting looking pieces to add to this reading list:

1.  The Duty to Avoid Disparity: Implementing 18 U.S.C. § 3553(a)(6) After Booker (due to appear in the McGeorge Law Review):

Abstract: Since passage of the Sentence Reform Act of 1984 ("SRA"), 18 U.S.C. § 3553(a)(6) has required sentencing judges in federal court to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." At the same time, the SRA also required judges to adhere in most cases to the Federal Sentencing Guidelines, leaving (a)(6) with little independent significance. In January 2005, however, the Supreme Court ruled in United States v. Booker that the Guidelines could no longer be treated as mandatory.  Since then, numerous sentencing judges have invoked (a)(6) in a variety of different circumstances to justify non-Guidelines sentences.  This Article surveys the cases, examines the origins and purposes of (a)(6), and proposes a new analytical framework for judges to use when implementing the provision. Under this approach, (a)(6) would require that a sentencing judge consider the average actual sentence imposed in past cases involving a similar offense of conviction, and expressly justify any deviation from this empirical norm.

2.  Is Restorative Justice Compatible With Sentencing Uniformity? (due to appear in the Marquette Law Review):

Abstract: Restorative justice (RJ) procedures offer an alternative to conventional criminal justice procedures. RJ emphasizes dialogue between criminal offenders and their victims, consensual conflict resolution, and the repairing of harm.  RJ skeptics, however, frequently argue that RJ procedures undermine uniformity in sentencing.  This Article considers the merits of these claims, concluding that RJ is compatible with some versions of uniformity, but not with others.  While uniformity, as a sentencing ideal, has many supporters, uniformity means quite different things to different people.  In particular, the Article contrasts "static" and "dynamic" versions of uniformity.  The static approaches rely on sentencing factors that are external and antecedent to the processes of the criminal justice system.  The dynamic approaches, by contrast, permit consideration of the interactions between offenders, victims, and criminal justice professionals within the system.  The Article demonstrates that the dynamic paradigms are more compatible with RJ than the static.  The Article also suggests some reasons to view the static paradigms (which pose relatively greater difficulties for RJ) with skepticism.

Reviewing Alito's work in criminal cases

The New York Times has this story discussing Judge Sam Alito's work in criminal cases while on the Third Circuit.  Here's the chief conclusion of the piece:

Judge Alito's opinions in criminal cases are meticulously written, with careful deference to the findings of trial court judges and juries and scrupulous determination to fit his decisions into the framework built by past cases.  He hews to the rules.

This conclusion seems sound, but it hardly facilitates predicting Alito's vote on key sentencing issues to be facing the Supreme Court.  After the decisions in Blakely and Booker, it is hard to be sure exactly what the rules are for the Sixth Amendment.  As I lament in my recent University of Chicago Legal Forum article, Reconceptualizing Sentencing (discussed here and here and at SSRN here), the Supreme Court has failed to build a conceptual framework for its rulings in this area.  Similarly, the Court's Eighth Amendment framework for deciding death penalty cases continues to evolve; a Justice Alito may find that there are many different capital rules to which he might hew. 

The NY Times article includes a quote from a defense lawyer that may provide a better basis for predicting how Alito will rule on criminal cases than his penchant for hewing to rules:

"The perception is, he's coming from an extremely conservative point of view," said George Newman, a defense lawyer in Philadelphia who has argued cases before the judge. "He's not a good defense judge."

Christmas clemency and pardon stories

Christmas time often prompts chief executives to grant clemencies or pardons, and this year is no exception.  A few days ago, as discussed here, President Bush granted 11 pardons, and Margy Love has this terrific commentary on these pardons over at the White Collar Crime Prof Blog.  Over the last few days, some governors have also gotten into the holiday spirit with clemencies or pardons:

• This article discusses a clemency granted by New York Gov. George Pataki to a drug offender.

• This article discusses the two persons who received pardons from Colorado Gov. Bill Owens.

• This article discusses the pardons granted by Texas Gov. Rick Perry to two men cleared of rape and murder charges by new DNA testing.

• This article discusses the pardons granted by Virginia Gov. Mark Warner to two men convicted of sexual assault who were recently cleared after a review of DNA evidence.

A Christmas sentencing classic

As folks get nestled all snug in their beds, I must pay homage to a true sentencing classic, 'Twas the Night Before Booker, that the mysterious Milbarge of the blog Begging the Question penned around this time last year as we were all breathlessly waiting for the Booker ruling. Here again is the opening refrain from Milbarge's brilliant sentencing lyrics in case you want your holiday mood to be flavored with sentencing memories:

'Twas the night before Booker, and all through the prison,
Inmates packed up the cells that they wouldn't be missing.
The lawbooks and transcripts were bound up with care,
In hopes that the verdict soon would be there.

I wonder if Milbarge might emerge from a winter slumber to pen an update in honor of Booker's upcoming birthday on January 12?

Seeking end of year "best" "most" "top" ideas and nominations

As 2005 winds to a close, I am thinking about possible end-of-year lists I could assemble like "Best sentencing opinions" or "Most interesting sentencing proposals" or "Top blog posts on sentencing topics."   Lacking the inspiration to pick one idea and assemble candidates on my own, I would be grateful if readers would use the comments to (1) propose ideas for "best" "most" "top" lists, and/or (2) make nominations for any such list.

The Blakely earthquake hits Vermont

Yesterday, while the federal circuit courts were celebrating a Booker Festivus, the Vermont Supreme Court had its own version of a Blakely Festivus.  As detailed in this news report, the "Vermont Supreme Court on Friday changed a quadruple murderer's punishment and deemed a nearly 20-year-old Vermont sentencing law unconstitutional." 

The unanimous ruling came in State v. Provost, No. 2004-160 (Vt. Dec. 23, 2005) (available here).  Here are some highlights from the provocative decision:

Vermont's homicide sentencing scheme is unconstitutional. The maximum sentence the court may impose under § 2303(a) without finding any facts in addition to the jury's verdict is life imprisonment with a minimum term of thirty-five years. Increasing that sentence to life without parole on the basis of any facts, other than a prior conviction, that the jury has not found beyond a reasonable doubt, violates the Sixth Amendment.... We hold that 13 V.S.A. § 2303(a) violates the rule in Apprendi and Blakely because it requires the sentencing court to weigh specific aggravating and mitigating factors not found by a jury beyond a reasonable doubt before imposing a sentence of life without parole....

We decline to follow the example of those courts that have created their own sentencing procedures to replace legislative schemes held unconstitutional in the wake of Apprendi and Blakely.... It is not at all clear whether the Legislature would prefer an indeterminate sentencing scheme placing greater discretion in trial judges, or a scheme requiring juries to conduct whatever additional fact-finding is needed.... Until the Legislature designs a constitutionally permissible means by which the factors can be weighed, there can be no basis for adjusting defendant's sentence above the presumptive term.

Interesting opinion on the right of victims to allocute at sentencing

Back in February, as detailed in posts here and here, the role of crime victims at sentencing was a topic of conversation at the US Sentencing Commission's major hearing focused on Booker issues(overall coverage linked here, specific highlights here and here).  A focal point for the discussion at the federal level, as both Judge Paul Cassell and victim advocate Collene (Thompson) Campbell highlighted for the USSC, is Congress's October 2004 enactment of a comprehensive Crime Victims Rights Act (codified at 18 USC § 3771).

This afternoon I received a copy of a fascinating opinion on this topic that was handed down earlier this week by none other that Judge Paul Cassell.  In US v. Degenhardt, No. 2:03-CR-00297 (D. Utah Dec. 21, 2005) (available for download below), Judge Cassell issued a 19-page opus in response to the request by certain crime victims of a fraud to make a statement at sentencing.  Here is the introduction to the opinion:

This criminal fraud case is before the court for sentencing. The government has advised the court that several of the victims wish to make a statement — or "allocute" — at the sentencing hearing. Their request presents a question under the current rules of Criminal Procedure, which gives only victims of crimes of violence or sexual abuse a right of allocution. This narrow provision, however, has been superceded by an Act of Congress — the Crime Victims Rights Act.  The Act broadly guarantees victims of all crimes the right to allocute. Accordingly, the court will follow the congressional command and give the victims an opportunity to allocute at the sentencing.

Download cassell_allocute_order.pdf

Happy Booker holidays from the circuit courts

As a fitting way to honor a Booker Festivus, today the circuit courts have wrapped up the pre-holiday week by issuing a bunch of sentencing opinions.  I have already seen notable decisions in the First, Sixth, Eighth and Ninth Circuits.

Since I have shopping to do, all I can do is note summarily that none of these rulings appears to be ground-breaking, but all of them continue to fill in a picture of a post-Booker federal sentencing universe that looks a lot like pre-Booker federal sentencing universe.  (Also, I can give a shout-out to the Eighth Circuit, because at this official opinion page you can quickly see the basics and find links easy links to its copious Booker work.)

UPDATE:  Late in the day, the Second, Fifth and Tenth Circuits also issued notable sentencing opinions.  I suppose all the circuits have earned the right to take a long weekend off.

A Booker Festivus for the rest of us

Last year in this post, I celebrated a Blakely Festivus by engaging in a Blakely airing of grievances.  To keep up the grand traditions of this special day, this year I am moved not only to encourage donations to the Human Fund, but also to air some of my Booker grievances:

1. Lower courts, in applying the Booker remedy, appear to have little concern for the Sixth Amendment and due process values that Blakely championed.  Most of the lower federal courts, especially the circuit courts, continue to have no worries about basing severe sentence enhancements on uncharged or even acquitted conduct.  Though a few brave district courts recognize that Blakely and the Booker merits majority both highlight problems with reliance on lax procedures at sentencing, most lower courts are more than happy to use the Booker remedy to continue with business as usual. 

2. The Supreme Court, after having further muddled Blakely's meaning with its Booker remedy, appears to have little interest in cleaning up the messy state of sentencing jurisprudence.  SCOTUS has already agreed to take up whether Blakely errors are structural, and I am also hopeful it will soon review how Blakely is being evaded in California and Tennessee.  Nevertheless, by so far refusing to take up Booker plain error, and Blakely/Booker retroactivity, and the scope an validity of the prior conviction exception, the Court has revealed that it feels no guilt about making a jurisprudential mess and leaving clean-up duties to lower courts.

3. The US Sentencing Commission, though doing a good job releasing basic post-Booker statistics, still seems disinclined to take an active and bold leadership role.  After conducting valuable public hearings in the months after Blakely and Booker, the USSC has been awfully quiet over the last 9 months as the post-Booker world unfolds.  A major debate over a possible Booker fix seems likely in the coming year, and the USSC should be out front framing the issues for debate, rather than just waiting in the wings as proposals emerge from the Justice Department and in Congress.

4. The Justice Department, even though it asked for the Booker remedy and still possess dominant power in the federal sentencing system, favors an imbalanced Booker fix.  Though there is no firm evidence to suggest that the post-Booker world of federal sentencing is dysfunctional, AG Alberto Gonzales is still advocating a Booker fix in the form of a minimum guideline system.  Such a Booker fix seems unsound from both a legal and policy perspective, but the Justice Department's chief goal when advocating sentencing reforms seems to be simply maximizing the power of prosecutors and minimizing the power of all other players in the system.

Tellingly, Congress is so far left out of my grievance airing.  Despite all the worries about the passage of mandatory minimums or other draconian sentencing laws in the wake of Booker, the legislative branch has so far been generally calm and tempered in its reaction.  (A few members of the House are still interested in playing the "tough-on-crime" political game, but there seems to be a laudable new cautiousness on sentencing issues among many members of Congress.)  Of course, there is buzz that this may all change come January upon the one-year anniversary of the Booker decision.

Say it with me: Serenity Now!  Serenity Now!  Serenity Now!

No mercy recommended for Dr. Death

Continuing the holiday clemency news, this AP story details that today the "Michigan Parole Board voted 7-2 to recommend denying the application for a commuted sentence or a pardon" for ailing Jack Kevorkian.  Those who love the 90s surely recall why Kevorkian is known as Dr. Death:

Kevorkian is serving a 10- to 25-year sentence for second-degree murder after being convicted of giving a fatal injection of drugs in 1998.  He was convicted in the poisoning of Thomas Youk, 52, of Oakland County's Waterford Township.  Youk had Lou Gehrig's disease, and Kevorkian called it a mercy killing. The death was videotaped and shown on CBS' "60 Minutes."

As detailed in the AP story, Kevorkian's attorney filed an application with the parole board "because he is worried Kevorkian might not live until he is eligible for parole in 2007."  This Reuters story provides additional details on Kevorkian and the parole board's ruling.

Is a picture worth 1000 more days in federal prison?

This interesting article highlights the perverted logic of the federal sentencing guidelines by detailing that, under the guidelines, a pervert who looks at pictures of children having sex can face a lot more prison time than a pervert who has sex with children:

A Daphne man pleaded guilty in Mobile's federal court Wednesday to driving to Florida to have sex with someone he thought was a 15-year-old girl.  Another Daphne man pleaded guilty to possessing and receiving child pornography in an unrelated case.  When both are sentenced in March, the child pornography defendant faces significantly more prison time — perhaps six times as much — under advisory sentencing guidelines.

"It's one of the strange things about the child pornography guidelines," said Assistant Federal Defender Lyn Hillman, who represents Lonnie Ray Hodnett.  "I've had defendants on child porn charges (for whom) the guidelines would have ended up being lower if they had actually molested a child."...

UPDATE:  In the comments and elsewhere, a number of folks have sensibly highlighted that the article referenced above is comparing apples and oranges in terms of the severity of the two offenses discussed.  And, to avoid any misleading implications, I should point out that the federal guidelines in most cases will recommend longer sentences for offenders who have sex with children than for those who look at pictures of children having sex.  Nevertheless, as the quote by the federal defender suggests, there are some instances in which looking at the wrong kind of pictures can get you as much or more federal time than engaging in the wrong kind of sex.

Also, for anyone interested in more perspectives on these important topics, consider this article about a federal sentencing for an on-line sexual solicitation and this article about a state sentencing of a coach having sex with an underage team member.

Death sentences continue to decline

As noted at TalkLeft and How Appealing, the Los Angeles Times has this article drawing from a new DPIC report indicating that the number of death sentences handed out in 2005 marked a new low in recent years.  The LA Times article also effectively reviews other major death penalty developments in 2005, most of which suggest that we are continuing to see the death penalty slowly dying. 

This press release provides more details about the DPIC report (which does not yet appear to be on-line).  And below are a few of the posts in which I have previously spotlighted declines in death:

• The decline of death?
• The slowing pace of executions
• Death is definitely different this month
• More on the decline of death
• American cultures of life and cultures of death
• More on a new death penalty culture

UPDATE:  The DPIC's year-end report is now available at this link.  The report is rich with data and here is its conclusion:

America has become less comfortable with the use of the death penalty and more accepting of the sentence of life without parole as an alternative to capital punishment.  Legislators, jurors, judges, and victims have shown greater interest in avoiding the risks, the costs, and the unpredictability of the death penalty when many of the same objectives can be accomplished with a sentence that is already widely used.

Death penalty numbers were generally down in 2005 and some states took action to eliminate the death penalty completely.  Religious organizations, judges, conservative political leaders, and editorial writers from papers around the country raised new challenges to capital punishment.

There were some counter-trends as well. On the federal level, there was an expanded use of the death penalty and efforts in Congress to restrict further the capital appeals process. Nevertheless, public support is at its lowest point in the modern era and the problems that have caused this erosion in support continue to plague the system.

The new holiday fad: clemency debates

In addition to the new round of Bush pardons and enduring discussion of the Tookie Williams case, the holiday season news is filled with items about clemency:

• This AP story details why "Actor Ethan Hawke is asking New Jersey's acting governor to grant clemency to a 65-year-old woman in prison for more than 16 years for murdering her boyfriend, a Trenton police officer."

• This AP story details why California's attorney general's office is opposing clemency for Charles Ray Allen, arguing that "that oldest convict on California's death row should be executed for the viciousness of his crimes despite his age and failing health."

• This story details why the attorney for "John Walker Lindh, the young Marin man who was captured while fighting for the Taliban in Afghanistan, has asked President Bush to commute his client's 20-year sentence."

Government arguing for 15+ years for Jamie Olis

Two months ago, as discussed here and here, the Fifth Circuit overturned the  24-year federal sentence of former Dynegy executive Jamie Olis.  Resentencing is scheduled for January 5th, and yesterday the government filed a brief recommending that Olis still be sentenced to more than 15 years in prison.  According to this Houston Chronicle piece, the government "lowered its estimated loss to between $20 million and $50 million in its brief, which called for Olis to be sentenced to at least 188 months."

Additional press coverage of the government's new sentencing calculation can be found in this AP story and this CFO.com story.  If I can get my hands on the government's filing, which should be very interesting reading, I will be sure to post it.

UPDATE:  I see here that Tom Kirkendall calls the government's new sentencing recommendation for Olis "an over-the-top and spiteful request."  Also, Peter Henning here rightly notes that "whether the district court will accept that figure remains to be seen, and the case illustrates the key role that the loss calculation plays under the Guidelines for fraud cases."

A new round of Bush pardons

Thanks to this post at TalkLeft, I see that President Bush, just in time for holidays, has granted a new set of pardons.  Details about the eleven individuals receiving the pardons and their crimes and sentences are available in this press release.  Notably, more than half of these pardons are for crimes committed about forty years ago or longer.

Interestingly, three of the five pardons for more recent crimes go to persons convicted and sentences of drug dealing during the 1980s (and the drug being dealt in two of these cases was cocaine, while marijuana was involved in the other case).  Along with Jeralyn at TalkLeft, I cannot help but wonder whether some special connections explain why these three particular drug dealers were the beneficiaries of pardons.  (It should be recalled, however, as TalkLeft noted here that four of the persons receiving pardons in the last round of pardons were also drug offenders.)

This newspaper article from Colorado provides more details about Wendy St. Charles, who received a pardon from her 1984 conviction "for conspiracy to conduct a narcotics enterprise and distribution of cocaine."  The article details that St. Charles is now a "licensed attorney who works for MDC Holdings, Inc., the largest Denver-based home-building firm" and that "Larry Mizel, chair of the MDC Holdings Inc., and his wife, Carol, are major supporters of the Republican Party and its candidates."

Related posts discussing previous batches of pardons from President Bush:

• More pardons from President Bush
• More (minor) pardons from President Bush
• More insights on the recent Bush pardons
• Bush's stingy pardon practice
• More pardon buzz
• Media criticism of Bush's pardon practice
• The Washington Post on Bush's pardons

Terrorism fears leads to sentence enhancement

Of course, the big legal debate these days over the war on terrorism concerns President Bush's authorization of warrantless surveillance.  (Balkinization and Concurring Opinions and PrawfsBlawg and Orin Kerr at Volokh have great coverage.)  But this story from San Diego highlights how terrorism concerns can also impact federal sentencing:

A federal judge took the unusual step yesterday of tripling the suggested sentence for a Somali community leader convicted of immigration crimes, saying the harsher sentence was justified because of national security concerns.

After Omar Abdi Mohamed declined to make a statement to the court, U.S. District Judge John Houston sentenced the self-described Muslim missionary to 18 months in prison.  Mohamed has already served two years while awaiting the outcome of his case....

Mohamed, 45, was never charged with terrorism.  He was convicted in two trials of six felony charges that he lied on visa and naturalization applications. He was acquitted of more serious charges, particularly that he lied during a citizenship interview about his association with the two charities in question, Global Relief Foundation and the Al-Haramain, which the U.S. government has linked to terrorist fundraising.

In explaining his departure from the sentencing guidelines, which suggest a six-month sentence, Houston said he was not focusing on whether Mohamed lied, but on the undisputed facts of the case.  He said he found sufficient evidence that Mohamed received $300,000 from those terror-linked charities, regardless of whether he lied about it.  "He was acquitted of lying about the receipt of money, but the evidence was clear that he received the money," Houston said. "In my mind, I can consider the receipt of money as affecting national security."

Sobering realities of race and the death penalty

Though the latest hot topics for debate over capital punishment concerns clemency and deterrence, the debates over race and the death penalty never go out of style.  And the latest hot spot for these issues is Maryland, as evidenced by this Washington Post op-ed by former Maryland Governor Parris Glendening and this Baltimore Sun op-ed by Ray Paternoster who was the senior author of the 2003 Maryland Death Penalty Study (which can be accessed in full here).

Both op-eds are very interesting reads.  In his piece, Glendening laments that the current state administration is failing to face up to "serious questions about the impact of race and geography in capital sentencing" in Maryland.  In his piece, Paternoster reiterates the findings from his study that "race and geography were factors in the decisions that lead to death row," and he expresses disappointment that his study "has only fueled misunderstanding and polarized both sides of the debate about capital punishment in Maryland."  (A discussion of similar issues can also be found to the north in this op-ed arguing that "New Jersey's capital punishment law has and continues to be applied in an absolutely inconsistent, arbitrary and irrational manner.")

Paternoster's commentary especially reinforce my sad and somewhat cynical conclusion that no one genuinely cares about the problems of racial disparity and discrimination in the application of the death penalty.  It often seems that death penalty opponents raise race issues simply as another argument to support the abolition of capital punishment.  Meanwhile, death penalty proponents often refuse to grapple seriously with race issues for fear that, practically speaking, any real effort to stamp out racial disparity in the administration of capital punishment could stamp out capital punishment altogether.

For a good overview of a number of race issues in the application of the death penalty, the materials here and here at the DPIC are quite informative (and depressing).  The number I always find most remarkable and telling is that, of the 1000+ executions in the modern death penalty era, only 12 executions have been for crimes in which a white defendant murdered a black victim (roughly 1% of all executions), whereas 208 executions have been for crimes in which a black defendant murdered a white victim (roughly 20% of all executions).

Lots of interest around the blogosphere

Interesting times produce interesting posts at many of my favorite cyber-haunts:

• Over at blackprof, where there are lots of great recent posts on a range of topics, Dorothy Roberts has this astute commentary on the way in which the media covers "white" drug addiction and crime.

• Over at PrawfsBlawg, where there are lots of great recent posts on a range of topics, Will Baude has this follow-up commentary questioning the readiness with which Becker and Posner accept claims about the deterrent impact of capital punishment in the US.

• Over at the Federal Defender Blogs, where there are lots of great recent posts on a few topics, the Third Circuit Blog has this coverage of the important recent Third Circuit decision declaring invalid a significant new Bureau of Prisons regulation, and the Ninth Circuit Blog has this coverage of the important recent Ninth Circuit decision on Booker sentencing and review (previously discussed here).

News flash: "embarrassment is not in the sentencing guidelines"

Though the thickness of the federal sentencing guideline manual might suggest nothing is left out of guideline calculations, this article reports on a notable sentencing today in which the government's lawyer was quick to say "embarrassment is not in the sentencing guidelines."  Here are some highlights from the rest of the story:

Anthony Doria, who founded the Vermont Law School and ran for the U.S. Senate, is headed to prison for defrauding a woman of $115,000.  Doria was sentenced in federal court to one month in prison, five months of home confinement and three years of probation on federal tax evasion charges. He must also make restitution to his victim....

Prosecutors claimed Doria took the money from Barbara Umbrecht of Newport, N.H., in 1998 and 1999. She believed he was investing the money on her behalf. Umbrecht said she was disappointed with the sentence.

Doria's lawyer, Barbara O'Connor, had asked U.S. District Court Judge J. Garvan Murtha to allow Doria to serve his time in a prison medical center. "A jail term for Anthony Doria, at 78 years of age, seems unproductive," said O'Connor.  She said the embarrassment caused by the charges was "extreme punishment."

Assistant U.S. Attorney Elizabeth Woodcock said "embarrassment is not in the sentencing guidelines." "Mr. Doria did nothing good for Mrs. Umbrecht," she said. "He wasn't investing her money, he wasn't even putting it in savings. He was spending it."

In other New England news, this interesting story about a federal case in Maine — evocatively headlined "Tearful pimp gets 11½ years" — reveals that, though there's no crying in baseball, there's sometimes a lot of crying at sentencing.

Appeal waivers and ineffective assistance

Today the Eleventh Circuit issued an interesting opinion discussing ineffective assistance of counsel for failure to pursue an appeal in Gomez-Diaz v. US, No. 04-11105 (11th Cir. Dec. 20, 2005) (available here).  Here is how the opinion begins:

Francisco Gomez-Diaz filed a timely 28 U.S.C. § 2255 motion challenging his conviction and sentence on federal offenses.  He alleged, among other things, that counsel appointed to represent him failed to file a notice of appeal as he requested.

It is well-settled that a lawyer who disregards instructions from his client to appeal has acted "in a manner that is professionally unreasonable." Roe v. Flores- Ortega, 528 U.S. 470, 477 (2000).  Prejudice is presumed. Id. at 483. The issue on this appeal is whether that general rule applies in a case where the defendant signed, as part of his plea agreement, a limited waiver of his right to appeal his sentence.  We hold that it does.

The echoes of Blakely where it all began

Today the newspaper The Columbian has this very interesting article, entitled "Judges eye more say over penalties," about the next wave of Blakely debate in Washington state. Here's how the article begins:

The state's Superior Court judges want back some of the discretion they had to impose stiff sentences for violent crimes before the U.S. Supreme Court took it away from them two years ago.

They want the 2006 Legislature to make Washington's mandatory sentencing guidelines nonbinding, and they seek authority to double the maximum sentence the guidelines allow in "exceptional" cases.  Without that discretion, they say, they are being forced to mete out sentences far too lenient for some heinous crimes.

But a state commission is recommending that lawmakers reject the judges' request for new sentencing authority and nonbinding guidelines.  The commission's majority says that could return Washington courts to the days before sentencing guidelines were enacted in the early 1980s, when judges in different parts of the state imposed widely varying sentences for the same crimes.

Further exploration of question "Is Capital Punishment Morally Required?"

Earlier this year, Cass Sunstein and Adrian Vermeule circulated a provocative article entitled "Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs" (which I first noted here and critiqued here).   I now see from this page that the paper, along with critical responses and a reply, will fill much of the December issue of the Stanford Law Review.

As first noted in this post, Carol Steiker had posted on SSRN a few weeks ago her response: No, Capital Punishment is Not Morally Required: Deterrence, Deontology, and the Death Penalty.  And now I see SSRN also has the contribution from John Donohue and Justin Wolfers, Uses and Abuses of Empirical Evidence in the Death Penalty Debate. 

Serious fans of serious debate over the death penalty should be sure to read all of these Stanford Law Review pieces (as well as, of course, the Sunstein and Vermeule reply, which I cannot yet find on-line).  Also, given the SLR's amazing October issue, which I fawned over here and here and here, I may start thinking of SLR as a short-hand for the Sentencing Law Review.

UPDATE:  Coincidentally, today over at The Becker-Posner Blog, Richard Posner has a post on "The Economics of Capital Punishment," and Gary Becker follows with a post entitled "More on the Economics of Capital Punishment."  Both posts seem to support capital punishment because of its purported deterrent impact.

I must say that I find the posts by both Posner and Becker to be surprisingly simplistic.  Neither of them seriously engages with the robust empirical debate over the evidence of capital punishment's purported deterrent effect.  Even more disconcertingly, neither explains or even explores why capital punishment should be limited to murderers (and not extended, for example, to drunk drivers) if its deterrent effect is a sufficient condition for its use.  As I first explained in this post, I find the deterrence arguments especially challenging when we consider drunk driving fatalities. 

Statistics show that there are over 17,000 alcohol-related driving fatalities each year (data here), and I have to think we could significantly reduce that number by executing just a few drunk drivers.  Drunk driving seems like a much more deterrable crime than some other killings, and recent history suggests that laws and public awareness can have a significant impact on alcohol-related driving fatalities.) 

Are Posner and Becker prepared to advocate the execution of drunk drivers because of the death penalty's likely deterrent impact in this setting (at least in states like California, Florida, and Texas that have a high number of alcohol-related driving fatalities)?  Becker closes his post by claiming "the capital punishment debate comes down in essentials to a debate over deterrence," but thinking about this claim through the lens of drunk driving fatalities really tests this debatable assertion.

The limited impact of Blakely in Apprendi-land

Back in August, as detailed here and here, the New Jersey Supreme Court in Natale applied Blakely to the state's presumptive sentencing scheme and then adopted its own version of the Booker remedy by making the state's sentencing scheme advisory rather than mandatory.  Today, in this effective article, the Asbury Park Press reports the unsurprising news that, in the wake of Natale, most state resentencings have left original sentences undisturbed:

Those who work in the criminal justice system, including judges, attorneys and corrections officers — who must transport the defendants from state prisons to the courthouses where they were originally sentenced — have been expending time and resources on the resentencings that, for the most part, are resulting in prison terms that are unchanged.

"They come here fascinated, thinking, "We're going to get our sentences reduced,' Deputy Public Defender Frank Gonzalez said of the defendants who have been brought back to court in Ocean County to be resentenced. "It has not been as fruitful or beneficial to the defendants as we had anticipated," said Gonzalez, who oversees the Public Defender's Office in Ocean County. "The bottom line is, we have not gotten much out of these resentencings, if anything at all."

Another notable district court fast-track ruling

A kind reader kindly forwarded to me the strong sentencing opinion by SDNY District Judge Robert Sweet in US v. Santos, No. 05 CR 522 (SDNY Dec. 12, 2005) (available for download below).  In Santos, Judge Sweet gave a substantially shorter non-guideline sentence (24 rather than the 57 month guideline sentence) primarily because of (1) fast-track disparity and (2) the "double-counting" involved in increasing the defendant's offense level and the criminal history category with the same drug conviction.

Download sweet_fast_track_opinion.pdf

So many criminal history stories in the naked city

As detailed in some of the posts linked below, the imposition of long sentences often turn on the vicissitudes of criminal history.  Another case proving this reality comes today from the Seventh Circuit's decision in US v. Sperberg, No. 04-4135 (7th Cir. Dec. 19, 2005) (available here).

In Sperberg, the defendant received a sentence of 17.5 years for being a felon in possession of a firearm "because the district judge concluded that he had been convicted of at least three other 'violent felonies'" (which formally turned the defendant into an "armed career criminal").  But, as explained by the Seventh Circuit's opinion, those violent felonies included an incident of drunk driving and an incident involving the threatening a security guard while stealing lobster tails from a grocery store.

Related posts:

• The harsh consequences of old criminal history
• The diktats of criminal history and Booker's potential virtue
• More on the joys of criminal history diktats
• The law and policy of criminal history

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

Big sentencing doings in the Ninth Circuit

While I was hostage to technology on Friday, the Ninth Circuit issued a set of sentencing rulings, one of which is a potential Booker blockbuster.  Folks interested in guideline technicalities will want to check out US v. Hernandez-Hernandez, No. 02-02127 (9th Cir. Dec. 16, 2005) (available here) (addressing counting of prior convictions), and US v. Speelman, No. 04-30067 (9th Cir. Dec. 16, 2005) (available here) (addressing scope of an appeal waiver and double-counting claim).  But everyone following the post-Booker world should take the time to read US v. Menyweather, No. 03-50493 (9th Cir. Dec. 16, 2005) (available here).

The decision in Menyweather suggests that, in the Ninth Circuit, defendants should expect fair weather (and prosecutors should expect stormy weather) on appeals from sentences below the guidelines.  Among other notable aspects of the majority opinion, the Menyweather court says:

Because Booker excised the de novo review of departures previously mandated by 18 U.S.C. § 3742(e), 125 S. Ct. at 765, we hold that the appropriate standard for reviewing the district court's determination of its departure authority is abuse of discretion, discretion, see Koon v. United States, 518 U.S. 81, 98-100 (1996), the standard in place before the statutory de novo review was enacted in 2003.

Menyweather shows that the Ninth Circuit views departures as an integral part of post-Booker sentencing (unlike the Seventh Circuit, which has said that "the concept of 'departures' has been rendered obsolete in the post-Booker world").  Menyweather also shows that a district court persistent in defending the grounds for a departure will likely prevail eventually: after having twice remanded for resentencing, the Ninth Circuit this time affirms an eight-level downward departure, based on diminished capacity and family circumstances, which allowed the defendant to avoid any serious prison time.

Writing a strong dissent, which has already garnered attention elsewhere, Judge Kleinfeld complains that the majority is functionally abdicating its post-Booker responsibilities:

The new sentencing regime does not justify this abdication of our duty of review.  The majority's application of review for abuse of discretion equates it with no review....

Now that the guidelines have been reduced from mandatory to advisory status, our review authority may be more rather than less important than it was before, to prevent idiosyncracy from altogether overtaking sentencing consistency.

Further reports on 1st Circuit crack/cocaine argument

As detailed in prior posts linked below, the First Circuit heard argument earlier this month in government appeals from sentencing decisions by RI Chief District Judge Ernest Torres in which he decided not to follow the guidelines 100:1 crack/powder ratio.  The Providence Journal now has this effective article reporting on the arguments.  Also, the PRACDL Blog has this comment about the case.

Related posts:

• Ground zero for post-Booker crack/powder debate
• A fascinating report on a Booker crack/cocaine oral argument
• More on First Circuit crack/cocaine oral argument (includes audio of argument)
• The government's argument against crack cracking the guidelines
• Effective article covering crack/powder cocaine developments

Great Alaska opinion on Blakely and consecutive sentencing

Proving yet again that great sentencing work is being done in the states (a reality reflected the latest FSR issue about Blakely in the states), the Alaska Court of Appeals on Friday issued an interesting Blakely decision in Vandergriff v. State, No. 2022 (Alaska App. Dec. 16, 2005) (available here).  In Vandergriff, the court holds that Blakely is inapplicable to a judicially-created state law rule which sometimes limits imposition of consecutive sentences unless a judge finds consecutive sentencing is necessary to protect the public.

What makes Vandergriff particularly special and especially worthy of everyone's attention is a fantastic concurrence by Judge Mannheimer.  This concurrence not only gives thorough treatment to Blakely's applicability to consecutive sentencing than, but also provides a cogent and compelling account of the Apprendi-Blakely-Booker line of decisions.  Here's one of the opening paragraphs from Judge Mannheimer's strong and effective opinion:

It is difficult to write a single paragraph that encapsulates the Supreme Court's holdings in Apprendi, Blakely, and Booker without any ambiguity.  However, the basic principle behind Apprendi, Blakely, and Booker is to preserve the right of jury trial in the face of legislative attempts to divide offenses into "elements" (facts to be proved at trial) and "sentencing factors" (facts to be proved at the sentencing hearing).  Apprendi, Blakely, and Booker hold that when the maximum punishment to which a defendant can be subjected varies according to the defendant's degree of offense, a defendant has the right to demand that a jury decide their degree of offense, and the right to demand that the factors which distinguish one degree offense from another be proved beyond a reasonable doubt.

Great sentencing items around the blogosphere

While cranky technology slowed me down on Friday, others in the blogosphere helped keep the sentencing fires burning:

• Howard at How Appealing had a number of notable sentencing items in his Friday cavalcade of coverage.  Check out this an examination of technicality injustice in a capital case, and the flagging of an important Ninth Circuit sentencing decision.  (I'll have more on the Ninth Circuit's work in a subsequent post.) UPDATE: Howard has more coverage of the Texas capital case here.

• The Federal Defender blogs have a lot of new and notable items of late, and the coverage of sentencing issues is especially robust at the Second Circuit Blog, the Third Circuit Blog, and the Sixth Circuit Blog.  Also, a must-read post from the defender team is this justified rant by Steve Sady at the Ninth Circuit Blog, which argues that "lower courts have been providing inadequate protection against Sixth Amendment violations: the failure to apply Apprendi and Blakely retroactively calls for the Supreme Court's intervention."

New Jersey death penalty moratorium in the works

New Jersey has essentially had a de facto (and pricey) moratorium on executions for more than two decades: as detailed here, the state has spent over $250 million on administering its capital punishment system without having executed anyone. 

Now, as a result of a state senate vote on Thursday, it appears that New Jersey will soon have an official moratorium on executions for a year while its capital punishment system is studied. As detailed in news reports from the AP and from the Newark Star-Ledger, the state Senate by a vote of 30-6 passed a bill that provides for a one-year hiatus on the death penalty while a commission studies whether the state's death penalty has deterred crime and has been "consistent with evolving standards of decency."

Lots of weekend reading from SSRN

I am in the process of catching up after a day of Typepad dysfunction.  Look for lots of posts throughout the weekend on big cases decided Friday and other sentencing news of note.  While I am catching up, check out some of the interesting new papers at SSRN on sentencing or related topics:

• Facing Evil by Joseph Edward Kennedy

• Differentiating Between First Offenses and Repeat Offenses by Bryan C. McCannon

• Crime, Deterrence, and Democracy by Libor Dusek

• Transparency and Participation in Criminal Procedure by Stephanos Bibas

• The New Prosecution by Kay L. Levine

• An Idealist Theory of Punishment by Thom Brooks

And, of course, as you put together your holiday reading list, do not forget the latest FSR issue about Blakely in the states or this previously noted paper at SSRN about state sentencing systems and voluntary guidelines. 

Hostage to technology

Sorry for the interruption in posts today, but the Typepad service was down all day.  And, of course, Friday would turn out to be active, with lots of interesting sentencing decisions from the Ninth Circuit and other state and federal courts.  I hope to catch up for lost time over the weekend.

Thanks for your patience.

Notable new paper on voluntary guidelines

Thanks to this post at the Legal Theory Blog, I see an interesting new paper at SSRN about state sentencing systems and voluntary guidelines (topics which are also addressed in the latest FSR issue about Blakely in the states).  Authored by John Pfaff, and available for download here, the new paper is entitled "The Continued Vitality of Structured Sentencing Following Blakely: The Effectiveness of Voluntary Guidelines."  Here is the abstract:

This Article explores the extent to which voluntary, non-binding criminal sentencing guidelines influence the sentencing behavior of state trial judges. In particular, it focuses on the ability of such guidelines to encourage judges to sentence consistently and to avoid improperly taking into account a defendant's race or sex. It also compares such guidelines to more-binding presumptive guidelines, which were recently found constitutionally impermissible in Blakely v Washington.

In general, the results indicate that voluntary guidelines are able to accomplish much, though not all, that presumptive guidelines were able to, especially with respect to sentence variation.  For example, voluntary guidelines appear to reduce a measure of variation in sentence length by as much as 28% for violent crimes and 17% for property crimes. By comparison, the analogous results for presumptive guidelines are a 48% drop for violent crimes and a 45% drop for property crimes. For the use of impermissible factors, the results are more ambiguous.  Presumptive guidelines appear in general to be slightly more effective than voluntary, but not consistently, and voluntary guidelines still appear to reduce the role of race and sex at sentencing; due to limitations in the data used for this project, however, it is difficult to draw clear inferences about the welfare implications of the changes with regards to the use of impermissible factors.

Furthermore, voluntary guidelines appear to avoid some of the problems associated with other alternatives, such as sentencing juries and the increased use of mandatory minimums.  In short, voluntary guidelines appear to be a viable, albeit somewhat less effective, alternative to presumptive guidelines in the wake of Blakely.

In praise of Slate's recent sentencing coverage

The great work of regular columnists like Emily Bazelon (lastest here) and Dahlia Lithwick (latest here) makes me a regular reader of Slate's jurisprudence columns.  But I have to give the Slate team an extra shout out of its many great recent columns on sentencing-related issues.

Earlier this week, as noted here, Slate published Alexandra Natapoff's strong piece about snitching.  And then yesterday, Slate published this great piece by Noah Leavitt, which discusses a range of important international sentencing issues in explaining why "Mexico and the United States ... are miles apart in terms of how they think about the rights of criminals — both foreign and domestic."

Completing a potent troika today is this terrific piece by Judge Coleman, which effectively and insightfully deconstructs California Governor Arnold Schwarzenegger's "Statement of Decision" denying clemency to Stanley 'Tookie' Williams.  Here's a taste: "Arnold Schwarzenegger's five-page statement denying clemency to Stanley 'Tookie' Williams earlier this week could well be included in future criminal-law casebooks.... Chances are even the most java-jolted law student wouldn't notice it didn't come from a court."

The number 1,000,000 in sentencing perspective

I see from my site-meter summary that this afternoon I passed 1,000,000 total visits since the meter started running about 18 months ago.  That milestone prompts me not only to thank all of my readers for their support and encouragement, but also to do a Harper's Index, sentencing style:

Number of persons executed in modern US death penalty era: 1004

Number of persons on death row in the US: 3415

Number of federal sentences imposed in fiscal year 2004: 70,068

Number of persons in US serving life imprisonment: 132,000

Number of persons released from US prisons each year: 630,000

Number of felony sentences in state court in 2002: 1,051,000

Number of prisoners in federal or state prisons or jails at the end of 2004: 2,135,901

Number of persons supervised on probation or parole at the end of 2004: 4,916,480

A white-collar sentencing in scarlet and gray

Right in my backyard today was a high-profile white-collar sentencing involving former Ohio State University marketing professor Roger Blackwell and his co-defendants.  Here are highlights from this informative article about today's sentencing:

A federal judge has sentenced Roger D. Blackwell to six years in federal prison for his role in the 1999 Worthington Foods Inc. insider-trading scheme. U.S. District Court Judge James L. Graham on Thursday also ordered Blackwell, 65, to pay a $1 million fine.

Earlier in the day, Graham sentenced co-defendants Kelley L. Hughes to 33 months in prison, and Hughes' husband, Kevin L. Stacy, to 27 months.  They were each fined $53,433, their share of the ill-gotten proceeds from trading in Worthington Foods stock prior to the public announcement in 1999 that the company was being acquired by Kellogg Co.

A helpful reader reported via e-mail that Blackwell's sentence of 72 months "was on the upper end of the guideline range of 63-78 months, and the judge made an upward departure on his fine [in order] to sentence him to pay $1,000,000." 

Some of my prior coverage of the many interesting post-Booker white-collar sentencing issues can be found in these posts:

White-collar Booker breaks
Pondering white-collar sentencing
A pattern of white-collar leniency?
Are the federal guidelines too tough on white-collar offenders?
Tough sentences for white-collar offenders