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November 18, 2004

Sentencing Law and Policy Web Log

Table of Contents

November 15, 2004 through December 31, 2004

1December 31, 2004

1Blakely gets a little year-end respect

1Highlights of a remarkable USSC document

2Reviewing the death penalty nationwide and in one California case

2Three interesting (and long) reads from the Ninth Circuit

3December 30, 2004

3A January comeback for the death penalty?

4A belated information present from the USSC

4The WSJ on federal/state sentencing disparities

5Another way to be punished without conviction

6December 29, 2004

6The capital story of clemency

7Sentencing developments in New Jersey

7Another Yarbrough update

8More Texas sentencing grits

8The death penalty coming and going

9Interesting state pardon stories

9December 28, 2004

9More Blakely state reports

10Interesting murder sentencing case law

10The state of Blakely in various states

11The WSJ on the federal Blakely mess

12The Washington Post on Bush's pardons

12December 27, 2004

12The politics of sentencing reform

13More holiday season state Blakely rulings

13Noteworthy (and unconstitutional?) sex offender collateral consequence

14December 26, 2004

14Sentencing year in review

16December 25, 2004

16A range of sentencing stories

16December 24, 2004

16Happy Blakely half-birthday!

17Gov. Rowland's interesting plea agreement

17Interesting Blakely perspectives

18December 23, 2004

18Blakely's Hawaiian punch

19Did Rowland sign a Blakely waiver?

19Contrasting capital reconsiderations

20A Blakely Festivus for the rest of us

20Media criticism of Bush's pardon practice

21Sister Prejean powerful perspective

21December 22, 2004

21More pardon buzz

22Martha Stewart reforming

22New resources from The Sentencing Project

23Schwarzenegger also grants petty pardons

23Blakely cases keep rolling along

24Bush's stingy pardon practice

25The morning's sentencing news

25December 21, 2004

25Everything you wanted to know about Blakely in Indiana

26Interesting state Blakely reports

26No New York clemencies this season

26December 20, 2004

26Predicting the Supreme Court's coming sentencing docket

27Blakely's lawyer gets more props

27Debating sentencing data

28A morning full of sentencing stories

29December 19, 2004

29New California report on women and parole

29State courts gone Blakely wild

30Reconsidering the death penalty

30December 18, 2004

30Blakely gets no respect

31Latest FSR Blakely issue on-line

31More capital headlines

32A sign of the capital times

32December 17, 2004

32Minnesota Supreme Court orders Blakely briefing

33Oregon Supreme Court decides Dilts (and ducks issues)

34Hawaii Apprendi habeas decision

35The death penalty is not in Kansas anymore

35Big Blakely news from sunny states

35Death penalty drama in Connecticut

36December 16, 2004

36Racial disparity and sentencing reform

37Hacking into the world of Blakely

37Another notable Blakely case in Colorado

37More on the decline of death

38December 15, 2004

38Off to Dayton

38The Peterson case and media coverage of the death penalty

39Another state Supreme Court taking up Blakely

39The continued rehabilitation of rehabilitation

40Intriguing report about sex offenders

41December 14, 2004

41An update on a remarkable capital case

41Fascinating "prior conviction" case from Indiana

42The death penalty making more headlines

43Pondering the link between sentencing policy and crime rates

43Proof that no Blakely news is news

44December 13, 2004

44Advice from a former USSC Commissioner

44Back to the capital news desk

44Sentencing (and immigration) is hard work

45My waiting wish-list

46No news is big news

46The wait continues: no Booker and Fanfan!

47Will it be today, or another month of waiting?

47December 12, 2004

47Is it finally Booker/Fanfan eve?

47The story of Blakely in the real Apprendi-land

48Thoughtful coverage of major sentencing issues

49December 11, 2004

49More prognosticating on Booker and Fanfan (and Roper)

50Death is definitely different this month

50State Blakely stories in the newspapers

51December 10, 2004

51Is the Booker/Fanfan delay all my fault?

51Lots of friday afternoon news

52More Supreme Court news and speculation

52It has to be Booker and Fanfan, no?

53Come all thee clemencies

54Weighing in on Rockefeller reform

54The recent BOP memo on Booker and Fanfan

54December 9, 2004

54Some capital case buzz

55More Blakely news from the field

55Revealing my sentencing bias

55In re state Blakely interpretations

56More on Rockefeller and other drug sentencing reform

57December 8, 2004

57Another side to Texas justice

58More cases in limbo awaiting Booker and Fanfan

59ABA's view of the post-Blakely world

59The costs of delay

59Blakely-ization plans in North Carolina

60SCOTUS still struggling: the wait for Booker and Fanfan continues

60'twas the morning before Booker?

60Rockefeller reform a (compromise) reality

61Deep thoughts about shallow conceptions of equality

62December 7, 2004

62Seeking help on Blakely in the states

63More on Pablon-Cruz

63Preparing to cover Booker and Fanfan in FSR

64Compelling reading from the drug war front

65Movement on mandatories?

66At least one more day to wait for Booker and Fanfan

66Here we go again

66Compelling capital cases nationwide

67December 6, 2004

67Will Booker and Fanfan clarify Blakely Admissions?

68Seventh Circuit remedies ugly case of prosecutorial (in)discretion

68Fascinating and sobering evidence of sentencing discrimination

69More consequences while we wait for Booker and Fanfan

69More on BOP gearing up for Booker and Fanfan

70Resources on Texas justice

70Remarkable retro retroactivity reality

71December 5, 2004

71Monday's SCOTUS sentencing docket

71A Kafkaesque federal sentencing story

71Continuing coverage of capital (in)justice, Texas-style

72Are federal prisons gearing up for Booker and Fanfan?

72For the death penalty historian

72Debating the structure of post-Blakely sentencing

73December 4, 2004

73Reflections on retroactivity and constitutional responsibilities

74SCOTUS concerns about capital justice in Texas

74Ashcroft's death penalty "legacy"

74Profiles in Litigation

75December 3, 2004

75More weekend reading from the Second Circuit

75Third FSR Blakely issue to press

75The 11th Circuit (sort of) speaks on retroactivity

76Wolf! Wolf! ... I mean Booker and Fanfan

76The slowing pace of executions

76Another view of waiting from the states

77December 2, 2004

77Rethinking the way jurors think(?) about death

78Latest Ohio State Journal of Criminal Law now on-line

78More musings and speculations while we wait

78Spotlighting problems with quantity-based sentencing

79Reports on case-specific Blakely impact

79December 1, 2004

79A peculiar (but important) Blakely ruling in Ohio

80Continued death penalty news on many fronts

80More snippets on Blakely's federal impact

81A remarkable (capital) lesson for lawyers and law students

82The impact of delayed Booker and Fanfan on the states

82More Booker and Fanfan speculation

82Interesting morning Blakely news reports

83Dynamic and debatable preliminary USSC data

84November 30, 2004

84Noteworthy recent capital developments

85A long wait for Booker and Fanfan?

85Post-Blakely data on the state of federal sentencing

85More Blakely developments in Ohio

86Gauging the impact of delay and uncertainty

87They're still not here: more waiting for Booker and Fanfan

87Gearing up for Booker and Fanfan

87Is today the day for Booker and Fanfan?

88Another report about jury involvement in federal sentencing

88How and how fast might Congress react to Booker and Fanfan?

89November 29, 2004

89Debating death in New York

90Latest Ohio State Journal of Criminal Law issue heading to press

90Of note around the blogsphere

91Great WSJ article on cooperation disparity

92A restorative ending to "Truth in Sentencing" coverage

92New Booker/Fanfan resources

92November 28, 2004

92Two must-reads from Professor Frase

94More powerful coverage of Wisconsin's "Truth in Sentencing"

94Interesting Blakely decisions from Maine

95November 27, 2004

95Feeney speaks about Blakely

96Broad public support of juries and Blakely

96CJ Rehnquist still ailing and out

97November 26, 2004

97Media reports from the front lines

97Be careful what you ask for

98More interesting state appellate Blakely decisions

98Race and gender disparity and discrimination

99November 25, 2004

99Giving thanks

100November 24, 2004

100Still more on Blakely in Minnesota

101In praise of the Fourth Estate

102Less than a week to wait for Booker and Fanfan?

103Substance, procedure and the future of mandatory minimums


104Interesting reports from the front lines

104Highlights from the Executive Summary of the USSC's 15-year report

106The USSC's 15-year report is out!

106Blakely/Booker backup


107No double jeopardy worries in Washington

107November 22, 2004 at 07:58 PM

107Sentencing tease

108Recent Ninth Circuit Blakely/Ameline remands

108Terrific in-depth coverage of "truth-in-sentencing"

109A morning of capital consideration


109Will federal judges engage in the policy debate after Booker and Fanfan?

110The law and policy of criminal history

111In the morning papers


112Brief (and compelling) weekend reading about mandatories

112Yet another FSR Blakely issue

113A bit of Blakely coverage


114The USSC's wonderful data plans

114Judge Cassell's remarkable, and remarkably disappointing, decision in Angelos

115Seeking death for Scott Peterson

116Killing study of the death penalty in Ohio

116Resources on drug courts

117Pardon me


118The brewing battle over the Bowman fix

119Blakely federalism in action

119Brief summary of USSC hearing highlights

120So many more state Blakely rulings

121Lots of sentencing in the papers


122Judge Cassell's continuing contributions

122Just got home, with LOTS to discuss


122Judge Cassell laments, but imposes, harsh mandatory sentence

123Anticipation....

123Off to DC and off-line for a while

123Exploring the nature of Blakely error in Illinois


124The AG and the death penalty

124Collection of USSC written testimony

125More for the voracious SL&P reader

125SCOTUS reversal of death sentence

125Highlights from the Stanford Blakely conference

126Examining the examining of Ohio's death penalty

126Mark your Blakely calenders

ADVANCE \d 4

December 31, 2004

SEQ CHAPTER \h \r 1Blakely gets a little year-end respect

I have previously explained in posts here and here why I think Blakely might be called the Rodney Dangerfield of Supreme Court decisions because its has not always received the respect it deserves from legal commentators. I was thus gratified to see that the decision did get at least little play in a few legal year-in-review pieces this week. (Of course, Blakely gets plenty of love in my own Sentencing Year in Review.)

Specifically, the import and impact of Blakely is noted in this essay entitled "2004's Legal Hits & Misses" by CBS News legal analyst Andrew Cohen. In addition, this press release from Thomson West has Blakely on its list of "Top Legal Stories of Year."

December 31, 2004 at 04:13 PM

Highlights of a remarkable USSC document

The US Sentencing Commission's recently posted "Preliminary Findings: Federal Sentencing Practices Subsequent to the Supreme Court’s Decision in Blakely v. Washington" (available here; discussed here) is a remarkable document which, though "preliminary" and "anecdotal," paints a vivid and fascinating picture of federal sentencing in the post-Blakely world. I could do a dozen posts about the memo; every section and nearly every sentence contributes new insights to an understanding of the current state of federal sentencing. For now, I will be content to urge evryone to read the document and provide just a few highlights from the text of the memo here:

Continuances. Several lines of evidence suggest that Blakely has led to a delay in final sentencing in a large portion of cases. A decline in sentencings is reflected in the decrease in case documentation received by the Commission.... Interviews in the 7th and 9th circuits confirm that continuances have generally increased in courts holding that Blakely applies to the federal guidelines, although there is considerable variation from district to district.... Some court administrators are concerned that, after a slow summer, the backlog of cases will strain resources when the cases start moving.

Sentencing post-Blakely. Courts have identified a limited range of possible responses to the Blakely decision, as outlined in the decision tree attached to this report.... Among courts that have held that Blakely applies to the federal guidelines, the most common response appears to be to treat the guidelines as advisory.

Alternative sentencing. Interviewees in our survey in several districts also reported that judges were not announcing alternative sentences and one judge said he had tried the practice but abandoned it. The Blakely coding project has found documentary evidence of alternative sentencing in just 4.9 percent of the cases coded as of November 1.

Case and factor severability. Documentary data are not yet sufficient to quantify the portion of cases adopting any particular approach to severability. Interviews in the 7th and 9th circuits suggest that most judges are holding the guidelines invalid only in cases with offending adjustments. Further, there is evidence that many judges, even in the 9th circuit, resist severing the offending provisions and applying the guidelines without aggravating adjustments.

Sentencing "windfalls." Interviews with participants in the 7th and 9th circuits suggest that sentencing windfalls due to non-application of aggravating adjustments have occurred but are relatively rare. Windfalls appear to be largely limited to cases that plead guilty pre-Blakely, because defendants now stipulate to at least some of the aggravating adjustment or waive their Blakely rights.

December 31, 2004 at 11:45 AM

Reviewing the death penalty nationwide and in one California case

Drawing on many of this year's major capital sentencing stories (some of which are discussed here and here and here), the Chicago Tribune has this terrific article reviewing nationwide death penalty developments in 2004. The article comprehensively reviews recent data and policy debates to explain that there are "signs of an apparent decline in the death penalty," but that the "falling numbers [of executions and death sentences] don't tell the whole story."

The Tribune article astutely examines the death penalty in specific states, although it does not note that capital stories in California are heating up after the Ninth Circuit this week rejected a habeas appeal of Donald Beardslee who is scheduled to be executed on January 19 (background in this post from How Appealing and in this article). Thoughtful articles today from the San Francisco Chronicle and the San Jose Mercury News detail that Beardslee has now petitioned Governor Arnold Schwarzenegger for clemency.

According to the Mercury News article, Beardslee's lawyers 48-page clemency petition asks for commutation to life without parole, citing Beardslee's "impeccable record" as an inmate, his "severe brain damage," and the fact that he "played a lesser role in the murders than co-defendants who did not receive the death penalty after being convicted." The petition apparently states: "A commutation of Mr. Beardslee's death sentence is not only a merciful result, it is the just result.''

It will be interesting to see how Governor Schwarzenegger reviews this petition (since, as noted in this Washington Post editorial, he has been been more willing than his predecessors to give offenders second chances). The Beardslee case is shaping up as a notable test of Professor Austin Sarat's recent comments on the disappearance of mercy in capital cases.


Three interesting (and long) reads from the Ninth Circuit

The Ninth Circuit has issued three interesting sentencing opinions over the last few days (thank to How Appealing and a reader for tips). All the cases touch on Blakely issues briefly, but they are more interesting for their facts and for highlighting the intricacies and complications of federal sentencing laws. I cannot detail all the particulars, but I can provide a cursory overview.

In US v. Lopez-Zamora, No. 03-50304 (9th Cir. Dec. 29, 2004), the defendant appealed the denial of a downward departure in an illegal entry case based on the minor nature of a prior felony. The court explains that the defendant's argument requires an analysis of "the interplay among three versions of the United States Sentencing Guidelines § 2L1.2(b)(1)(A) — the 1995, 1997, and 2001 versions." Twenty pages later (and over a 9 page dissent), the court concludes a departure would have been legally permissible, but it still affirms the district court's sentence. And the court relies on the prior conviction exception to dispose of any Blakely concerns.

In US v. Bad Marriage, No. 03-30404 (9th Cir. Dec. 30, 2004), the Ninth Circuit reverses an upward departure based on the defendant's criminal history in an assault case. Here's the provocative opening paragraph of the opinion:

This case is a powerful indictment of the criminal justice system. Our social and penal policies are failing to alleviate alcohol abuse on Indian reservations and the crime to which it gives rise. These problems cry out for treatment, not simply more prison time.

The court then needs 23 pages to reject the upward departure by the district court (and along the way explains that, by invalidating the departure on the facts, "we do not resolve whether, or how, Blakely affects upward departures" based on criminal history). The dissent here needed only 5 pages to express disagreement with the court's holding.

In US v. Gordon, No. 03-10322 (9th Cir. Dec. 30, 2004), the court examines the $27 million restitution order imposed in a major wire fraud case involving a "promising federal appellate law clerk gone bad." After 23 pages of intricate analysis of the federal restitution statutes (and after dropping a footnote to note the Ninth Circuit's view that restitution orders are not impacted by Blakely), the court partially affirms and partially reverses the district court's restitution order. One member of the panel adds six pages to explain his partial dissent.

All tolled, these cases provide 90 pages of federal sentencing fun to keep sentencing nerds busy while we wait to ring in the new year.


December 30, 2004

A January comeback for the death penalty?

As I noted here, December has been a remarkable month for the death penalty because it has been the first month without an execution in the United States since July 1994. But, for different reasons, January is also shaping up to be a remarkable month for the death penalty. Because of pending executions and coming legal and policy debates, January will include noteworthy death penalty stories from coast-to-coast:

In Massachusetts , as this article details, there is a brewing policy debate over Governor Mitt Romney's proposed bill to bring the death penalty back to the state (some background here).

In Connecticut, as this article details, the legal battle over the planned January execution of serial killer Michael Ross has made it to the state Supreme Court (some background here).

In Kansas, as this article details, the state is seeking reconsideration of the Kansas Supreme Court's decision to invalidate the state's capital sentencing procedures (basics here, commentary here and here).

In California, as effectively detailed in this post from How Appealing and in this article, the Ninth Circuit has quickly rejected a habeas appeal which removes one more legal barrier to the scheduled January 19 execution of Donald Beardslee.

And, perhaps making certain we will not have another execution free month, Texas has four executions scheduled for January (despite the recent scrutiny Texas cases are getting, as detailed here and here).

And in addition to all these happenings, also in the works is AG nominee Alberto Gonzales's Senate confirmation hearing (with a death penalty backstory as noted here and here and here), as well as a possible Supreme Court decision in Roper on the juvenile death penalty (background here and here).


A belated information present from the USSC

In my testimony last month to the US Sentencing Commission, I urged the USSC to examine post-Blakely developments, especially in the Seventh and Ninth Circuits where Blakely has been deemed applicable to the federal guidelines, to help assess whether a "quick legislative fix" would be truly essential after a possible ruling in Booker and Fanfan applying Blakely to the federal system. Thus, I am very pleased to see that the USSC now has posted on its Booker/Fanfan page a document entitled "Preliminary Findings: Federal Sentencing Practices Subsequent to the Supreme Court’s Decision in Blakely v. Washington" (available here).

Here is how the USSC describes this fascinating new document on its Booker/Fanfan page:

While awaiting the submission and analysis of empirical data on the effect of the Blakely decision, the Commission staff conducted a survey of 40 sample subjects (judges, defense counsel, and probation officers) in the Seventh and Ninth Circuits to attempt to determine, through anecdotal means, how those jurisdictions are handling their criminal caseloads.

Though this document is, as stressed by the USSC, "preliminary" and "anecdotal" and only includes cases through October, it is still an extremely important and interesting (partial) report on the post-Blakely state of federal sentencing. Along with this week's WSJ article on federal court doings, this document is a must read for everyone interested in assessing both the present and possible future of federal sentencing.

In subsequent posts over the next few days, I will highlight some of the most essential elements of this memo and also reflect on what it suggests for those planning for a post-Booker world. For now, let me just lavish the USSC with praise for making this document publically available. Perhaps this good deed will bring good karma for USSC Chair Judge Hinojosa's beloved Texas Longhorns (who will need to do a lot better against a Big Ten team in the Rose Bowl than another Big 12 team did against my Buckeyes in the Alamo Bowl last night).


The WSJ on federal/state sentencing disparities

ADVANCE \d 4Following closely on the heels of its great coverage of the Blakely mess earlier this week, the Wall Street Journal has yet another terrific front-page sentencing article this morning. Today's topic is the important but often-overlooked realities of "the often-arbitrary decisions about which suspects should be prosecuted in state court and which in federal court."

The full title of article by Gary Fields (available here with subscription) tells the essential story, "Sentencing Shift: In Criminal Trials, Venue Is Crucial But Often Arbitrary -- Taking Over From the States, Tough Federal Courts See Surge of Small-Time Cases." Here are some highlights:

For much of America's history ... [a]lmost all crimes were handled by the states. Only a tiny handful involving a clear offense against the entire nation, such as treason or bribery of federal officials, were brought into federal court.

But in recent decades Congress has passed a raft of statutes that mandate long terms in federal prison for crimes ranging from drug dealing to carjacking.... Typically states already have their own laws against these offenses that set sentencing parameters for state judges to follow.

The decision about who should prosecute an offender is crucial, because federal sentences are usually much tougher. The average sentence for federal defendants convicted of drug charges in 2002 was three years and eight months longer than the average for state drug charges, according to the Bureau of Justice Statistics....

Between 1970 and 1998 the number of federal criminal statutes nearly doubled to 3,000, according to a 1998 American Bar Association study, the most recent comprehensive data available. Legal professionals say the number is much higher now -- probably around 4,000 -- although it's hard to tell how high because the statutes aren't listed in one place. The number of cases brought by federal prosecutors in 2001 was 82,614, up from 44,144 in 1982, according to the Bureau of Justice Statistics.

Robert Litt, a former deputy assistant attorney general for the Justice Department's criminal division, attributes the surge in new laws to "a tendency on the part of Congress to deal with any sort of serious problem by making a [federal] crime out of it." Members of Congress often point to the new laws as evidence they are producing concrete steps to fight crime.


Another way to be punished without conviction

The Blakely ruling at its core seems sound to me because it will generally prevent persons from being punished for crimes for which they were not convicted (which is a not-uncommon practice under the existing federal guidelines). But this interesting article from Utah shows that, even after Blakely, there are still some ways persons can be punished for unconvicted conduct.

The article reports on a decision by the Utah Board of Pardons and Parole to keep a man in jail for armed robbery after DNA evidence linked him to a series of rapes:

Some legal observers say the case of Rudy Michael Romero, 40, sets a dangerous precedent, because Romero is effectively being held in prison on an indeterminate sentence for crimes for which he was never convicted.

Romero was sentenced to five years to life for aggravated robbery, and was scheduled to be paroled July 27 after serving 10 years of his sentence. But the parole board rescinded the date after learning June 22 he had been implicated in five rapes committed in the early 1990s after the crime lab matched his DNA with preserved evidence.

Romero has no known sexual-assault convictions and wasn't implicated in the cases until the state crime lab began to take saliva samples from prison convicts to match against DNA evidence in unsolved crimes. However, Romero cannot be tried for the Jordan River rapes because the four-year-statute of limitations has expired.

The article also notes that "according to state law, the board's decisions are absolute and cannot be appealed." However, in a post-Blakely world, it will be interesting to see if courts might be more willing to intervene in a decision of this sort than in the past.


December 29, 2004

The capital story of clemency

Professor Austin Sarat, who has written extensively about the law and sociology of capital punishment, has this potent Findlaw article about clemeny decision-making in capital cases. The piece examines clemency and the concept of mercy in death penalty cases while lamenting that "In capital cases throughout the country ... clemency — and mercy — have all but disappeared."

Though Sarat's focus is just on clemency in capital cases, the themes he develops in his article dovetail with all the recent discussion of executive use of the pardon power. In addition, with AG nominee Alberto Gonzales's Senate confirmation hearing now scheduled for next week, all of these issues could soon take center stage in the public dialogue about our justice system.

Here are some of my more recent posts on these topics:

PARDONS:

Interesting state pardon stories

The Washington Post on Bush's pardons

Bush's stingy pardon practice

More pardon buzz

Media criticism of Bush's pardon practice

GONZALES AND CAPITAL CLEMENCY:

Sister Prejean's powerful perspective

The AG and the death penalty

AG nominee Gonzales and sentencing issues


Sentencing developments in New Jersey

Proving (as I suggested in my Sentencing Year in Review) that smaller media outlets are also doing a great job with sentencing stories, today at NorthJersey.com there is this fantastic article about sentencing developments in New Jersey.

Noting the recent reform of the Rockefeller drug laws in New York (basics here, some commentary here), the article is focused primarily on the prospects for drug sentencing reform in New Jersey. But, with a review of important sentencing data and many interesting quotes, the article covers a broad range of important sentencing reform topics (e.g., the piece notes there are "23,000 people in [NJ] state prisons — 35 percent of them locked up for drug-related convictions;" it quotes Ben Barlyn, executive director of the NJ sentencing commission saying "This country is in the midst of what is essentially a revolution with regard to sentencing law and practice [and] our mandatory minimum laws are going to be reviewed very carefully.").

Especially noteworthy is (1) the article's review of prosecutorial sentencing authority in the wake of a recent decision by state AG Peter Harvey to allow county prosecutors to offer plea deals without mandatory minimums, and (2) the article's report that the newly created New Jersey Sentencing Commission is soon expected to release its first report on state sentencing and to make recommendations to the NJ Legislature. These developments, combined with the interesting way Blakely is developing in New Jersey (details here and here), makes the Garden State one to watch especially closely in the year ahead.


Another Yarbrough update

Earlier this month, I discussed here the remarkable ruling of the Ohio Supreme Court in State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087 (Dec. 1, 2004), in which a unanimous court concluded it must reverse a death sentence for the gruesome murders of two Ohio college students for lack of jurisdiction because the murders were committed in Pennsylvania. Following up, as detailed here, I posted the motion for reconsideration filed in Yarbrough at the request of Chris Muha, a Yale Law School student who is the older brother of Brian Muha, who was murdered 5 years ago by Terrell Yarbrough. A fascinating dialogue to this motion appeared in the comments and elsewhere in the blogsphere (thanks to posts by Orin Kerr and Mark Godsey and http://lawdork.blogspot.com/2004/12/brothers-request.htmltChris Geidner and many others).

I can now report that the Ohio Supreme Court yesterday denied without opinion the motion for reconsideration in Yarbrough, although one justice, Francis Sweeney, dissented. Chris Muha has responded by requesting that I post a memo he has written in which he asserts that "what might amount to the state's strongest argument has only recently come to light." In this memo, which can be downloaded below, Chris contends that the Model Penal Code, from which Ohio's criminal code is largely derived, "would give Ohio jurisdiction over the murders committed by Terrell Yarbrough."

As before, Chris is eager for blogsphere feedback on his legal analysis. As he explained in an e-mail to me:

I would love to get feedback on [this memo], not only for my own working through of all of this, but because there's a possibility that Nathan Herring, Yarbrough's accomplice, will appeal his own murder convictions, in which case we might get the chance to fully litigate the arguments we made in the motion. I'll also be honest and say that I really think the court got all of this wrong, and that I would like to see that fact recognized.... [The prior posting] seemed to generate a lot of productive discussion, which I genuinely benefitted from, and for which I'm grateful.

Chris can be reached by e-mail at [email protected]. He also noted to me that he and his mother will be on the O'Reilly Factor tomorrow (Thursday night) to discuss these matters.

Download yarbrough_mpc_and_2901.doc


More Texas sentencing grits

Scott Henson at Grits for Breakfast (which I have now added to my blogroll) has been doing an especially strong job lately covering drug sentencing and the economics of sentencing in Texas.

For example, this morning Scott has this interesting post about Texas criminal justice officials pleading with the Texas Legislature to restore drug treatment funding for parolees, while claiming that cuts to treatment programs in 2003 led to greater recidivism. Scott's report is an interesting follow-up to this prior post about the efficacy of drug courts in Texas.

And yesterday, Scott thoughtfully reported here on a state bill "which would lower the penalty in Texas for possession of less than an ounce of pot to a class C misdemeanor, which is the equivalent of a fine-only traffic ticket." Both Scott's post and this news story highlight the state economic benefits that could flow from such a sentencing reform.


The death penalty coming and going

Two newspaper articles about proposed capital punishment reforms provide a remarkable window into the dynamic and unpredictable world of the death penalty these days.

First, from Boston comes this article detailing that Massachusetts Governor Mitt Romney is preparing to file a death penalty bill early next year based on the work of the commission he created to develop a nearly "foolproof" death penalty system (the interesting report of that commission is available here). The article reports that Romney calls his bill "as close to ideal" as possible, and that Romney envisions his bill as a national model "that other states with more lax death penalty laws could adopt."

Then, from Virginia we get this article detailing that "death penalty opponents will urge the Virginia General Assembly to abolish capital punishment for juveniles." The article notes that activists have formed an Alliance to End the Juvenile Death Penalty, and that they are pressing for legislative action even before the Supreme Court resolves the Roper case (which, as discussed here, concerns the constitutionality of executing juvenile offenders).

Though I doubt either of these capital reform proposals will become law anytime soon, it feels like another Bizarro world moment when there is talk of expanding the death penalty in Massachusetts and restricting it in Virginia.


Interesting state pardon stories

Though President Bush's stingy approach to pardons is getting the media and blog buzz, the stories of state governors considering pardons and clemencies this time of year are likewise compelling. (Tuesday morning's great Washington Post editorial merits extra credit for contrasting Bush's approach on these issues to that of republican governors in California and Maryland.)

A few recent newspaper articles capture some of the poltical and human dynamics that surround state pardon and clemency decision-making. The titles of the articles alone provide a sense of the drama:

from Missouri, we get Nun makes passionate case for pardon of Missouri prisoner;

from Washington, its Yakima prosecutor objects to governor's clemency;

and West Virginia gives us Wise tackles inmates' petitions.

In addition, linked at the end of this post are earlier stories about pardons issued by governors in South Dakota and Vermont.


December 28, 2004

More Blakely state reports

With many thanks to the many FOBs ("friends of blog") sending in reports, I can follow up this morning's state Blakely round-up with some additional interesting state reporting. The states of note this afternoon are Minnesota, Ohio and Washington.

MINNESOTA: The news from comes in the form of two decisions from Minnesota Court of Appeals. In State v. Hagen, C0-02-1318 (Minn. App. Dec. 28, 2004), the court clarifies that an "upward durational departure under the Minnesota Sentencing Guidelines may not be based on an "admission" by the defendant, under Blakely v. Washington, 124 S. Ct. 2531 (2004), unless the "admission" to an aggravating factor is accompanied by the defendant's waiver of his or her right to a jury trial on the aggravating factor." In State v. Brooks, A03-2050 (Minn. App. Dec. 28, 2004), the court concluded that Blakely did "does not require that a jury find, or a defendant admit, the existence of a custody status point" because (according to the court) assignment of those points are like a prior conviction.

OHIO: The report here is a third-hand account from an Ohio lawyer "that Ohio Supreme Court Chief Justice Moyer, at a training for new judges, said that the Ohio Supreme Court was taking Blakely 'VERY seriously.'" This is great news because, as noted in a number of previous posts (examples here and here and here and here), the story of Blakely in Ohio is very serious.

WASHINGTON: The report from Blakely's home state is that a group a committee of prosecutors and criminal defense lawyers have a proposal in the works for the Washington legislature when it reconvenes next month which would involve the "Blakely-ization" of Washington's guideline scheme by providing for aggravating facts, other than the fact of a prior conviction, to be placed before the jury.


Interesting murder sentencing case law

Thanks to the blogsphere, I can spotlight a few interesting and noteworthy appellate rulings in murder cases:

From CrimProf Blog comes this post discussing the decision of the Missouri Supreme Court in Hutchinson v. Missouri in which the court reverses a death sentence for Brandon Hutchinson based on ineffective assistance of counsel in the penalty phase. But, what is getting the blogsphere's attention in this case (see TalkLeft and Instapundit) is that Hutchinson's co-defendant Freddy Lopez received 10 years in part of a plea deal that resulted from a $230,000 payment from a killer's family to the victim's family. I hope to be able to do some commentary on this very interesting case later tonight.

From How Appealing at this post is a report on a habeas decision from the Ninth Circuit. Here is how Howard describes the decision in Lambert v. Blodgett:

A unanimous three-judge panel consisting of judges regarded as part of the Ninth Circuit's conservative wing, today reversed the grant of habeas corpus that a federal district court had issued in favor of a fifteen-year-old who had pleaded guilty in state court to aggravated first-degree murder, an offense that carried a mandatory sentence of life in prison without the possibility of parole.


The state of Blakely in various states

This morning's WSJ article (detailed here) provides a great review of the state of Blakely in the federal system, but I find the state of Blakely in the states an even more interesting and dynamic story. Indeed, as detailed in some of my recent posts on the topic, the state Blakely story is too fast-moving and dynamic for me to track comprehensively. (More background here and here and here.)

Fortunately, there other folks covering the Blakely story in particular states, and I can just report and link to their efforts. Today I have helpful reports on Indiana, North Carolina and Texas.

INDIANA: As noted before here, Indiana's Blakely story is being well-covered by state lawyers there, and now I see that Michael Ausbrook at INCourts has this post which reviews all the Indiana cases that mention Blakely and their current status.

NORTH CAROLINA: This newpaper article provides a very effective review of the story of Blakely in North Carolina. The article also details that the a subcommittee of the NC Sentencing and Policy Advisory Commission "has recommended that aggravating factors and some issues related to prior records be submitted to a jury to determine if they exist."

TEXAS: With great thanks to Scott Henson at Grits for Breakfast, I can provide a link to this terrific research brief from the Texas Senate Research Center reviewing the story of Blakely in Texas. Here is the astute conclusion of this effective report:

Because Texas does not have the sort of determinate sentencing guidelines used by the State of Washington or the federal government, Blakely will not significantly impact Texas law. However, there are specific statutes in the Code of Criminal Procedure that authorize a judge to make an affirmative finding of fact that may be used to increase the defendant’s punishment, but the statutes are not clear whether this affirmative finding must be based on facts proved beyond a reasonable doubt to the trier of fact. These and any similar statutes could be subject to challenge under Blakely.


The WSJ on the federal Blakely mess

In my Sentencing Year in Review, I praised the media's recent coverage of sentencing issues, and the Fourth Estate is doing me especially proud this week. To go with a powerful NY Times editorial and great Wash. Post pardon coverage, this morning brings another great article from Laurie Cohen at the Wall Street Journal. (A collection of the WSJ articles covering the federal sentencing system could now make a great sentencing reader, with just some of the prior great articles here and here and here and here.)

SEQ CHAPTER \h \r 1Today's front-page WSJ piece (available here by subscription) is entitled "Double Standard -- In Wake of Ruling, Disarray Plagues Federal Sentencing" and documents the nationwide mess made by Blakely:

Disarray has enveloped the federal court system for the past six months since a Supreme Court ruling hinted that the guidelines governing federal sentences may be unconstitutional. As federal judges wait, and wait some more, for the divided high court to deliver a final verdict, they have come up with a myriad of ways to sentence defendants.

The article does an especially effective job detailing the Blakely story from a variety of angles by quoting many federal judges and litigants from various parts of the country. Here's one example of the insightful anecdotes in the piece:

In Sioux Falls, S.D., Chief Judge Lawrence L. Piersol says he is asking juries to find drug quantities and that is "simple for them." But financial fraud cases are another matter. Judge John C. Coughenour, chief judge of the Western District of Washington, yesterday completed an eight-week trial involving 87 counts of tax evasion and other fraud. The jurors came back with guilty verdicts against six defendants. "It's not going to be a simple task for a jury to conclude how much the tax loss was," says Judge Coughenour.

The article also provides thoughtful review of the different views of Blakely waivers, and it has a cool looking map detailing the current circuit variations on what Blakely means for the federal sentencing system while we "wait, and wait some more, for the divided high court to deliver a final verdict." (I have detailed the particulars of the circuit variation in this post.)

The article not only details the mess that is federal sentencing now, but it highlights for me how hard the "clean-up" is going to be for lower federal courts next year no matter what the Supreme Court says in Booker and Fanfan. And I am already looking forward to the WSJ's coverage of that future story.


The Washington Post on Bush's pardons

The Washington Post this morning is all over the pardon story, and the criticism of Bush's stingy use of his pardon power, with this article and this effective editorial. The article, which is already been spotlighted this morning by the blogs TalkLeft and De Novo, effectively covers some of the history of presidential pardons and reiterates of the criticisms generated in the blogsphere last week (see list of posts below).

The editorial, titled "Model for Mr. Bush," does a great job spotlighting that, unlike the President, some republican governors have been willing to use their executive sentencing aggressively. Here's the opening paragraph:

For a self-styled compassionate conservative, President Bush has been stingy with mercy. Last week, he granted four pardons, all to people sentenced to probation many years ago. The latest round of pardons brings Mr. Bush's first-term total to only 29, along with two sentence commutations. This is dramatically fewer clemency actions than any recent president has taken, barely 5 percent of those granted by President Jimmy Carter, for example. It is also dramatically less mercy than displayed by two governors of the president's party, who have reinvigorated their offices' power to give second chances: Robert L. Ehrlich Jr. of Maryland and Arnold Schwarzenegger of California.

For prior posts on the pardon issue, see:


More pardon buzz



December 27, 2004

The politics of sentencing reform

Monday's New York Times had this powerful editorial by Brent Staples which, in addition to assailing the harms done by harsh mandatory sentencing laws, details some of the often overlooked political forces which impede reform. Here's an excerpt:

The business of building and running the jailhouse has become a mammoth industry with powerful constituencies that favor the status quo. Prison-based money and political power have distorted the legislative landscape in ways that will be difficult to undo.


More holiday season state Blakely rulings

As noted before, with all the major Blakely rulings early this month (some details here), I thought the holiday weeks might be quiet on the Blakely front. But, as detailed here and here, just the first few days last week brought more than a dozen state and federal appellate cases dealing with Blakely issues.

In addition to the previously noted rulings here, a few more state Blakely decisions from last week recently came on-line with Patrick v. State, 2004 WL 2965848 (Ind. App. Dec. 23, 2004) (which is discussed at length here by Michael Ausbrook at INCourts) and also State v. Whatley, 2004 WL 2964710 (Tenn. Crim. App. Dec. 22, 2004). And today from the west coast today came State v. Clarke, 2004 WL 2980283 (Wash. App. Div. 1, Dec. 27, 2004) and People v. Brooks, 2004 WL 2980298 (Cal. App. 2 Dist., Dec. 27, 2004)


Noteworthy (and unconstitutional?) sex offender collateral consequence

In conjunction with a recent Ohio conference on "Collateral Sanctions in Theory and Practice," I have blogged a bit here on the array of collateral legal sanctions which flow from criminal convictions and their impact on offender reentry. (For the full story on this important issue, the folks at the Sentencing Project have the goods here.) But, thanks to Jonathan Soglin at Criminal Appeal, I see that California has come up with a noteworthy (and possibly unconstitutional) new restriction on sex offenders.

As thoroughly detailed in Jonathan's thoughtful post here, a couple weeks ago, California's Attorney General Bill Lockyer announced the unveiling of the Megan's Law sex offender locator site. This site, which is quite user-friendly and provides access to information on more than 63,000 persons required to register in California as sex offenders, is itself noteworthy. But particularly catching my attention is Jonathan's report that the California law which led to the creation of this resource (AB 488) also includes a provision making it a crime for registered sex offenders to enter the site. Here's the text of Cal. Penal Code § 290.46(i), which I am inclined to call a web-surfing prohibition:

(i) Any person who is required to register [as a sex offender] who enters the Web site is punishable by a fine not exceeding one thousand dollars ($1,000), imprisonment in a county jail for a period not to exceed six months, or by both that fine and imprisonment.

Jonathan's post details some of the illogic and unfairness of this web-surfing prohibition, and I share his instinct that there may be constitutional problems as well as policy concerns with barring sex offenders from accessing a website which provides information about them.

On this interesting constitutional issue, I would especially like to hear from legal mavens like Profs Orin Kerr or Eugene Volokh at The Volokh Consiparacy or Prof. Larry Lessig. My first question is whether this law breaks new ground simply by making it a crime for certain people to access a publically-available website. (I am way outside my field of expertise here, since all I know about computer crimes is that you can get a pretty serious sentence for hacking.) I can imagine a number of ways to challenge such a law, but I suspect there is already some relevant cyber-jurisprudence to inform this issue.

At a broader policy level, both the sex offender website and this questionable California law reflects the pariah status of sex offenders in society today. I have spotlighted this issue and related sentencing matters in a few prior posts:

· Intriguing report about sex offenders

· Sex offender sentencing


December 26, 2004

SEQ CHAPTER \h \r 1Sentencing year in review

With Christmas in the books, we now get all the Year in Review and Top Ten lists reflecting on the year about to be completed. Never one to shy away from fads, I will here present my own Top Ten list of sentencing developments for 2004 (along with one "non-development").

I will count down from 10 to 1, though everyone who frequents this blog knows what #1 is going to be. I encourage readers to use the comments to spotlight important events I may have overlooked and to otherwise dicker with my list.

2004 Sentencing Non-Development

Lack of serious reforms to mandatory sentencing. Despite broad academic and judicial criticisms of mandatory sentencing provisions and recent state movements away from mandatories, the absence of reform was the bigger story in this arena this year. Though initially favored by the electorate, California voters rejected a proposition to limit the reach of the state's Three Strikes Law (background here and here); though federal District Judge Paul Cassell hinted about a major ruling in the Angelos case, he ultimately upheld the constitutionality of a severe mandatory federal sentence; though New York reformed its harsh Rockefeller drug laws, the limits of the changes was noted and lamented by those working for reform. And, of course, everyone is fearful, perhaps for good reason, that Congress will respond to Blakely/Booker by enacting a host of mandatory minimum sentencing provisions.

Top Ten 2004 Sentencing Developments

10. Remarkable rulings by federal district courts on unconstitutionality of the federal sentencing guidelines. From Judge Young's remarkable and foreshadowing pre-Blakely Green decision, to the immediate post-Blakely rulings of Judge Cassell in Croxford and Judge Goodwin in Shamblin, to Judge Panner's conclusion in Detwiler that the Feeney Amendment renders the federal system structurally unconstitutional, federal district judges impressively advanced and framed the legal debate over the federal guidelines' constitutionality.

9. Celebrity sentencings. Though the cases were not high-profile for legal reasons, the capital sentencing of Scott Peterson, the prison time given to and now being served by Martha Stewart, the plea deals entered by former Governor John Rowland and football star Jamal Lewis, and the Blakely-ized trial of Enron defendants provided remarkable and valuable windows into the law and policy of capital and non-capital sentencing.

8. Effective and powerful sentencing work by public policy groups. The ABA's release of its Kennedy Commission report and the VERA Institute's state Blakely analyses (here and here) are just the most tangible examples of all the great and important sentencing work being done by a range of public policy and public interest groups. And the work of the ABA and VERA and other groups — like the Death Penalty Information Center, The Sentencing Project, Families Against Mandatory Minimums, The Constitution Project, Watching Justice, American Law Institute — not only influenced sentencing law and policy in 2004, but also will have an impact (I hope) on 2005 developments.

7. Remarkable rulings by state courts on unconstitutionality of state death penalty procedures. Kansas and New York, which in the mid-1990s enacted new death penalty laws, both had their capital sentencing procedures declared unconstitutional by their states' highest courts (highlights here). In addition to perhaps reflecting broader capital trends in 2004 (see item #2), these developments should set up interesting 2005 policy debates over the need for the death penalty (you can see the start of the debate here and here).

6. Effective and powerful media coverage of sentencing stories. Though high-profile cases still received the most (excessive) attention, the Fourth Estate did important and influential work on a range of sentencing law and policy issues. On topics ranging from Blakely to the death penalty to truth in sentencng, I was consistently impressed (despite the ocassional error) by the reporting and analysis of sentencing stories from big outlets like the Wall Street Journal (examples here and here) and the New York Times (example here) and from little papers nationwide (examples from just this week are here and here).

5. The US Supreme Court's death penalty actions (and activism). Though every year the Supreme Court has a number of capital cases, the Court's rigorous review and involvement in death cases this year rightly garnered lots of attention. And with 2005 to include a decision in Roper on the constitutionality of executing juvenile offenders (background here and here) and arguments in Medellin concerning the rights of foreign nationals on death row (background here), this story line is likely to continue to grow in the months ahead.

4. The federal system's severe reaction to Blakely. Despite the Supreme Court's (weak) effort in a footnote to keep Blakely from being a federal sentencing story, no jurisdiction was more impacted by the Blakely earthquake. And watching the range of reactions to Blakely from all the actors and institutions in the federal system — from Congress, SCOTUS, the Justice Department, the USSC, district and circuit courts, practitioners and academics — has made for amazing drama for six months (and counting). Just thinking about all that has already transpired after a state ruling (Blakely) makes it hard to fully fathom what we will see after Booker and Fanfan finally get decided.

3. The state systems' sensible reaction to Blakely. Despite the profound impact Blakely could have on so many state sentencing laws, the states have typically taken a thoughtful and cautious approach to dealing with the fallout from the Blakely earthquake. And watching the reactions to Blakely from state actors and institutions — from legislatures, courts, attorneys generals, practitioners and academics — has made for an amazing contrast with the (perhaps overheated) drama in the federal system. But how the states will be able to efficiently and effectively sort out all the uncertainties Blakely has created (especially since Booker and Fanfan may not provide much help) is also hard to fully fathom.

2. The decline of death(?). Though the Peterson verdict might suggest otherwise, all other evidence in 2004 suggests the death penalty is dying a slow death. December marks the first execution-free month in more than a decade, and reductions in the number of death sentences and in the number of executions provide more statistical evidence to suggest the death penalty is on the decline in the United States. (This DPIC report covers this story from all the angles.)

1. Blakely v. Washington. See this blog (not to mention items 10, 8, 6, 4, 3 above). 'Nuff said.


December 25, 2004

A range of sentencing stories

Though all is calm and all is bright this holiday morning, the newspapers still have an array of sentencing stories that merit a quick post. (I also need a break from toy assembly.) So here is some sentencing news of note:

This story from Arizona reports on a state trial in a rape case which was bifurcated so that, a month after rendering a guilty verdict, a jury could consider Blakely aggravating factors.

This story from Kansas details why the state's coming legislative debate over capital punishment — which is necessary because of the Kansas Supreme Court's Marsh decision (discussed here, commentary here and here) — probably won't be limited to just fixing the procedural flaw that led the Court to strike down the state's death penalty law. The report notes that the incoming state Senate leader "expects an attempt from opponents of capital punishment to scuttle the law, though such an effort is not expected to succeed."

Finally, returning to the pardons story (covered here and here), the papers report that Governors in South Dakota and Vermont made this year an especially Merry Christmas for a few offenders.


December 24, 2004

Happy Blakely half-birthday!

If you are eager to avoid getting tangled in the brouhaha over the proper greeting this holiday season (as recently discussed by TalkLeft), you might just say to people today "Happy Blakely half-birthday!" That's right, today marks exactly six months since the Supreme Court rocked the sentencing world with its decision in Blakely v. Washington. And celebrating the decision's half-birthday seems a fitting follow-up to celebrating a Blakely Festivus.

For the record, at the six-month mark, a search this afternoon of "Blakely w/2 Washington" after June 24, 2004 in the all courts database produces 1281 "hits" on Westlaw (592 in allstates, 689 in allfeds), while the same search in Lexis produces 1375 "hits" (705 in allstates, 670 in allfeds). And, of course, these numbers do not reflect the tens of thousands of sentencings that Blakely may have impacted that have not resulted in an on-line opinion.


Gov. Rowland's interesting plea agreement

With thanks to Professor Ellen Podgor of White Collar Crime Prof Blog, I can now provide a link here to former Connecticut Governor John Rowland's plea agreement. I pondered in this post whether the agreement included a Blakely waiver and whether it anticipated a decision in Booker and Fanfan. Not surprisingly, these issues are well covered on page 3 of the 11-page agreement.

The entire Rowland plea agreement is a fascinating read. It includes provisions calculating the guideline sentencing range for Rowland of 15-21 months of imprisonment. The last three pages of the agreement constitutes a "Stipulation of Offense Conduct," and it covers the facts which support these guideline calculations. Also of interest is a passage on Page 5 of the agreement that contemplates Rowland will argue for a downward departure from the guideline range of 15-21 months on various grounds related to his minor role in the offense and his professional and community contributions.


Interesting Blakely perspectives

Two interesting newspapers stories this morning on the Blakely beat provide details about both the system-wide and case-specific impact of the decision:

This article from Alaska provides a system-wide perspective on Blakely. It quotes a state public defender who explains, within a story about increased December state caseloads, that his office has been "appointed to represent 75 people in a sort of post-conviction review regarding the legality of sentence under the Blakely." This article reinforces a point spotlighted here that the administrative burdens created by Blakely are consequential wholly apart from the decision's substantive impact on sentencing laws and outcomes.

This article from New York provides a case-specific perspective on Blakely. The piece details the federal sentencing of a father and son for their roles in directing a massive asbestos cleanup scam. The long sentences (19 years for the father, 25 years for the son) and the case's interesting facts make the story a fascinating read. The article notes that the defendants' sentences were increased considerably based on judicial fact-finding and that Blakely will be a chief issue raised on appeal.


December 23, 2004

SEQ CHAPTER \h \r 1Blakely's Hawaiian punch

As noted here yesterday, this week has been surprisingly full of noteworthy Blakely rulings. And perhaps the most significant Blakely decision comes from the 50th state, Hawaii, through the state Supreme Court's ruling in State v. Rivera, 2004 WL 2955940 (Hawai'i Dec. 22, 2004).

As the Rivera decision details, Hawaii's history with sentencing reform is lengthy and intricate, stretching back to the mid-1960s. And, interestingly, well before the entire Blakely line of cases, the state had developed its own elaborate jurisprudence for determining which sentence-impacting facts must be alleged in an indictment and found by a jury. (This jurisprudence disinguishes between "intrinsic" and "extrinsic" facts and seems similar to the offense/offender distinction I propose in my "Conceptualizing Blakely" article.)

After the US Supreme Court handed down Apprendi, the Hawaii Supreme Court decided in Hawaii v. Kaua, 72 P.3d 473 (Haw. 2003), that the state's extended term sentencing scheme, in which judges can enhance sentences based on findings about the need for "protection of the public," was still constitutional. However, as noted last week here, US District Judge Susan Oki Mollway earlier this month in Kaua v. Frank, Civ. No. 03-00432 (D. Haw. Dec. 9, 2004), held in a habeas action that defendant Kaua's extended sentence clearly violates Apprendi, and that the Hawaii Supreme Court decision in Kaua was "an unreasonable application of Apprendi."

Despite the federal district court ruling, the Hawaii Supreme Court in Rivera has now again held, by a 3-2 vote, that the state's extended term sentencing scheme is constitutional. Though the majority's ruling, available here, is lengthy and complicated, the court seems to hold that Apprendi/Blakely is inapplicable both because Hawaii has an indeterminate sentencing system AND that because findings about "protection of the public" can fit within the "prior conviction" exception.

Writing in dissent, which is available here, Justice Acoba asserts that Blakely requires reconsideration of the court's Kaua ruling and that Blakely now means that the Sixth Amendment is violated when a sentencing judge in Hawaii imposes an extended term based on solely the judge's findings.


Did Rowland sign a Blakely waiver?

As detailed in this AP article, and also as discussed here by White Collar Crime Prof Blog, former Connecticut Governor John Rowland pleaded guilty today to one count of conspiracy to steal honest service, a felony that carries a sentence of up to five years in prison.

The AP story details that Roward struck a plea deal with prosecutors, and reports that the federal sentencing "guidelines call for a sentence of 15 to 21 months in prison, the lawyers involved said." That report has me wondering whether Rowland's plea deal includes some sort of Blakely waiver providing that he would be subject to this sentencing range no matter what the Supreme Court says about the fate of the federal guidelines in Booker and Fanfan.

The Rowland case will be interesting to keep an eye on because we should (I dearly hope) have a decision in Booker and Fanfan by the time of Rowland's March sentencing. And, with a statutory sentencing maximum of five year for the count of conviction, but with Rowland likely able to claim that prison time is not need to serve the purposes of punishment, a post-Booker sentencing in this case could be really interesting. And yet, it also seems possible that all the lawyers in this case have already thought through and planned for the various possible legal contingencies in the plea agreement.

If any readers know and can share more information or insights about the Rowland deal and its sentencing components, I would be grateful.


Contrasting capital reconsiderations

I noted last week here the interesting fact that Kansas and New York, which both in the mid-1990s after long periods without capital punishment enacted new death penalty laws, now a decade later have both had their capital sentencing procedures declared unconstitutional. (The ruling of the Kansas Supreme Court in Marsh is discussed here; the New York Court of Appeals ruling in LaValle is discussed here.)

Also of great interest now is watching Kansas and New York reconsider the death penalty as they contemplate enacting new capital statutes without the now-identified constitutional infirmities. (Prior post on this topic include Reconsidering the death penalty and Debating death in New York.)

Today we have this interesting article from Kansas detailing that Governor Kathleen Sebelius has now said she likely would sign a bill fixing the state's death penalty law even though, as a state legislator, Sebelius voted against the Kansas death penalty law enacted in 1994. But, marking a remarkable contrast, this New York Times article details that NY Assembly Speaker Sheldon Silver, a long-time supporter of capital punishment, is now saying he is not sure New York needs a death penalty law anymore.

The NY Times article is especially interesting for its analysis of politics and pragmatism. These closing paragraphs highlight some of the article's themes:

Opponents of the death penalty calculate that at least $175 million has been spent on death penalty litigation [without any executions] in the state. Supporters say that the law saves money because defendants plead guilty to lesser offenses, avoiding the cost of trials.

The numbers have persuaded Mr. Silver that there's a "purely pragmatic" argument against a law he voted to enact. Pragmatism and the death penalty. Not a coupling anyone in New York would have imagined 10 years ago.


A Blakely Festivus for the rest of us

Though I am not planning a full Festivus celebration today, with all of the grand traditions, I am inclined to engage in a little Blakely airing of grievances.

Of course, first on my list of grievances is the lack of a decision yet in Booker and Fanfan. I made the mistake of giving thanks last month for a quick decision, but now I am aggrieved that federal and state criminal justice actors are still waiting for desperately needed Blakely clarification and guidance.

Next on my list of grievances is the failure of legal commentators to give Blakely the respect it deserves. In this post, I previously explained why I thought Blakely might be called the Rodney Dangerfield of Supreme Court decisions, and the "no respect" decision suffered another blow from commentator Edward Lazarus' FindLaw essay today on "The Most Important Legal Developments of 2004." Blakely does not get one mention in the essay, even though in less than 6 months the ruling has already led to an expedited Supreme Court case, generated over 1300 on-line lower court appellate rulings, impacted probably tens of thousands of sentencings, and is prompting over a dozen jurisdictions to contemplate changes to current sentencing laws.

My last grievance to air (for now) is on the local front; I want to complain a bit about most Ohio courts working so hard to avoid applying Blakely to Ohio's sentencing system. The most recent Ohio Blakely dodge comes this week in State v. Stillman, 2004 WL 2940813, 2004-Ohio-6974 (Ohio App. 5 Dist. Dec. 20, 2004), where the court rules that Blakely essentially has no applicability to Ohio's sentencing scheme. As detailed in this helpful recent memo from the Ohio Sentencing Commission, the 8th District Court of Appeals is the only Ohio appellate court to reverse and remand sentences on Blakely grounds, even through judicial fact-finding is central to many Ohio sentencing determinations.

I suppose I can understand what drives Ohio courts to dodge Blakely: as I have previously highlighted, Blakely's formal rule could be extremely disruptive for Ohio's functional sentencing laws (background here and here). Nevertheless, I think a fair reading of Blakely makes it applicable to various aspects of Ohio's sentencing system. In the end, my biggest grievance may be with the Ohio Supreme Court, which thus far has shown no interest in directly addressing Blakely's applicability in Ohio.

I probably could go on, but then I might not have energy for the Festivus feats of strength. But readers are welcome and encouraged to celebrate a Blakely Festivus by sharing their Blakely grievances in the comments.



The newspaper opinion pages have joined the blogsphere in criticizing Bush for his stingly approach to pardons (details here and here).

In a piece entitled "The Land of the Second Chance," Debra Saunders effectively places Bush's pardon work within the broader context of modern sentencing laws and policies (and also quotes from Margy Love's powerful words in this post). The piece is balanced and thoughtful while detailing a few compelling cases that seem to call for executive clemency relief. It also quotes Mary Price of Families Against Mandatory Minimums suggesting "we could probably come up with 40 names" for Bush of inmates whose sentences should be commuted.


Sister Prejean powerful perspective

Sister Helen Prejean — perhaps the nation's leading death penalty abolitionist and author of Dead Man Walking (which was made into one of the best movies about capital punishment) — has a new soon-to-be-published book entitled The Death of Innocents: An Eyewitness Account of Wrongful Executions. Adapted from that book is a powerful article in the current issue of the New York Review of Books entitled "Death in Texas."

Sister Prejean's article, which can be access here, is a stinging indictment of then-Governor George Bush's denials of clemency to death row defendants in Texas. The article recounts a number of old and new stories about how then-Governor Bush found ways to "distance himself from his legal and moral responsibility for executions." (The article reinforces the notion that now-President Bush's stingy approach to pardons (discussed here and here) is in keeping with his long-standing character.)

The entire article is a compelling read, and the article's penultimate paragraph provides a sense of the piece's provocative themes and tone:

As governor, Bush certainly did not stand apart in his routine refusal to deny clemency to death row petitioners, but what does set him apart is the sheer number of executions over which he has presided. Callous indifference to human suffering may also set Bush apart. He may be the only government official to mock a condemned person's plea for mercy, then lie about it afterward, claiming humane feelings he never felt. On the contrary, it seems that Bush is comfortable with using violent solutions to solve troublesome social and political realities.


December 22, 2004

More pardon buzz

The blogsphere continues to buzz about President Bush's approach to pardons. Crime & Federalism refutes here some arguments that have been made in the comments to this post cconcerning Bush's stingy approach to the pardon power. And White Collar Crime Prof Blog thoughtfully discusses here the fact that most of Bush's recent pardons have been of white-collar offenders.

Meanwhile, in blogsphere comments, some have urged listing "specific individuals that truly deserve a pardon." As detailed in this Chicago Tribune article, Illinois Senator Dick Durbin has done just that by urging President Bush to pardon six Army reservists from Ohio who were court-martialed for taking equipment to carry out their mission in Iraq.

UPDATE: Chris Geidner at De Novo here wonders what all the Bush pardon bashing hopes to achieve, as he righly suggests President Bush is unlikely to be shamed into granting more pardons. However, ever the optimist, I think it would be an important achievement (which would eventually have tangible consequences) to shift the political rhetoric around pardons and clemencies so that all chief executives — the President and state governors — see that an inappropriate failure to use this historic power is just as subject to criticism as the inappropriate use of this power.

Moreover, I continue to hope that all the popular and political conversations about moral values and family values will come to focus on the moral and family harms that can be inflicted by overuse of our criminal justice system and incarceration. President Bush continues to lay claim to being a compassionate conservative, and in his 2004 State of the Union address Bush called America "the land of second chance." Through a more robust use of the pardon power, President Bush could start walking the walk, in addition to just talking the talk, about compassion and second chances.


Martha Stewart reforming

As detailed in this cnn-money story, Martha Stewart, halfway through her five-month prison sentence, was able to deliver a holiday greeting today from her minimum-security camp in West Virginia through a note to fans posted on her personal Web site. That note, which you can access here, suggests that Martha might add sentencing reform advocacy to her busy agenda after her release.

Stewart starts her greeting by noting that so many of the 1,200 other female inmates "here in Alderson will never have the joy and wellbeing that you and I experience." She then implores:

I beseech you all to think about these women — to encourage the American people to ask for reforms, both in sentencing guidelines, in length of incarceration for nonviolent first-time offenders, and for those involved in drug-taking. They would be much better served in a true rehabilitation center than in prison where there is no real help, no real programs to rehabilitate, no programs to educate, no way to be prepared for life "out there" where each person will ultimately find herself, many with no skills and no preparation for living.

Especially since, as CNN reports, Martha's "net worth has been bulking up thanks to a surging stock price at Martha Stewart Living Omnimedia," Stewart will have the resources and platform to be a potent advocate for sentencing reform upon her release from prison. I will be interested to see if her future actions follow-up on her powerful words.


New resources from The Sentencing Project

I just noticed that The Sentencing Project, a non-profit organization which does terrific research and advocacy work on a range of criminal justice issues, has on its website new resources on Blakely and on the scope of imprisonment.

On a page appropriately titled "Awaiting the Supreme Court," Executive Director Malcolm Young provides extensive background on Blakely and the pending Booker and Fanfan. This discussion of the cases also effectively integrates (and links to) other important recent sentencing reform developments.

And a document entitled "New Prison Figures: Rising Population Despite Falling Crime Rates" provides an effective and compelling summary of the latest prison data released by the Bureau of Justice Statistics last month (discussed here). The document also discusses nationwide sentencing developments and has an amazing final graph of different countries' incarcertaion rates (which shows that the US rate of incarceration is more than 5 times China's, more than 10 times Japan's and more than 20 times India's rate of incarceration).


Schwarzenegger also grants petty pardons

You might say California Governor Arnold Schwarzenegger is showing he can act presidential: the day after President Bush granted a few pardons to minor offenders convicted long ago (details here), Governor Schwarzenegger has, according to this story, granted pardons to three minor drug offenders all of whom were convicted more than 25 years ago.

Since former California Governor Gray Davis did not issue any pardons during his term in office, I suppose Governor Schwarzenegger should be complemented for bringing the pardon power back from termination in California. But given that the California Senate recently felt compelled to create the California Commission on the Fair Administration of Justice to assess problems with the state’s criminal justice system (background here), I suspect there might be a few more defendants in California who merit pardon consideration.


Blakely cases keep rolling along

With all the major Blakely rulings last week (some details here), I thought this pre-holiday week might be quiet on the Blakely front. But there are on-line already more than a dozen state and federal appellate cases dealing with Blakely issues from Monday and Tuesday of this week alone. Here are a few of the rulings that seem most noteworthy:

FEDERAL CASES

In US v. Taveras, 2004 U.S. App. LEXIS 26540 (1st Cir. Dec. 21, 2004), the First Circuit in a per curiam opinion upholds a trial judge's consequental drug-quantity findings, which were based on seemingly suspect accomplice testimony. Of course, this finding raises Blakely issues, but the Taveras court continues the First Circuit's approach (noted here and here) of using plain error analysis to rebuke Blakely claims.

In US v. Vaughan, 2004 U.S. App. LEXIS 26545 (10th Cir. Dec. 21, 2004), the Tenth Circuit similarly uses plain error analysis to rebuke Blakely claims in a major fraud case. Here, the court notes the defendant "admitted in the plea agreement to all five of these [Blakely-significant] facts [and thus] has failed to show that any sentencing error under an extension of Blakely would seriously affect the fairness, integrity, or public reputation of the judicial proceedings in this case."

In US v. Mellen, 2004 U.S. App. LEXIS 26513 (D.C. Cir. Dec. 21, 2004), the D.C. Circuit, in a split 2-1 decision, overturns the trial court's calculation of the amount of loss in a fraud case. In so doing, the court avoided having to address Blakely, but it explained: "We issue our judgment today without awaiting guidance from the Supreme Court on this question because it appears, quite apart from any constitutional concerns, that [the defendant] may be eligible for immediate release upon resentencing. To the extent necessary, the district court may apply the Supreme Court's upcoming decisions in Booker and Fanfan in the first instance at resentencing."

STATE CASES

In State v. Gomez, 2004 WL 2937808 (Ariz. App. Div. 1, Dec. 21, 2004), the court examines the rules for applying Arizona's Proposition 200, which was "a voter initiative also known as the Drug Medicalization, Prevention, and Control Act of 1996 [which seeks] to treat initial convictions for personal possession and use of a controlled substance as a medical and social problem." Significantly, the court finds the provision which "disqualifies an otherwise eligible defendant from mandatory probation for a drug offense based solely on a finding that the defendant has been 'indicted for a violent crime' to be unconstitutional."

In State v. Brown, 2004 WL 2938643 (Minn. App. Dec. 21, 2004), the court sustains a Blakely objection to the application of Minnesota's career offender sentencing statute. Here's how the Brown court explains why the defendant's sentence was Blakely problematic: "Although the existence of prior convictions falls under an exception to the Blakely requirement of jury findings, an upward departure under the statute requires an admission or a jury verdict on the added finding that the convictions formed a pattern of criminal conduct."



BUMP AND UPDATE: I see that Orin Kerr at The Volokh Conspiracy has a powerful post here also criticizing President Bush's under-use of his pardon power. In the hope this issue will continue to draw attention in the blogsphere and the media, I have moved up my post on the topic from last night.

Also, for those interested in an in-depth academic and historical examination of the pardon power, the Federal Sentencing Reporter assembled a terrific collection of original articles and historical materials a few years ago in a special double issue on the pardon power and sentencing policy. A summary of that issue can be found here, and the full table of contents and on-line ordering information is at this link.

-----

From 12/21 at 9pm:

According to this AP story, President George Bush granted four pardons today, which gives him a total of just 31 pardons and commutations during his first term. As the AP story notes, this total is "far off the pace of most modern presidents and less than half the 77 granted by his father, President George H.W. Bush, during his single term from 1989 to 1993."

In a few recent prior posts, I have discussed President Bush's stingy approach to the historic clemency power, as well as other clemency news:

· Pardon me

· No New York clemencies this season

· Come all thee clemencies

UPDATE: Seeking more insights about President Bush's approach to these matters, I wrote to Margaret Colgate Love, a specialist in post-conviction remedies and executive clemency, who served for seven years as US Pardon Attorney under the first President Bush and President Clinton. Here's her powerful reaction to the recently announced pardons:

These four grants are collectively so banal and inconsequential as to demonstrate once again President Bush's disdain for his own pardon power. In all four cases the crimes were very minor (all were sentenced to probation), and three of the four occurred more than 25 years ago. To confine use of the power to these kinds of cases, as Bush has throughout his four years in office, trivializes and squanders it. When you think of the enormous good that could be done with the power, and what the Framers thought about it as a test of presidential mettle and integrity, you can see that it is a truer measure of presidential courage than almost anything else the President does. Don't forget that this is the ONLY way a federal offender can get relief from the collateral consequences of conviction, which under state law can be very severe.

Relatedly, President Bush has granted only 29 of the 707 pardon cases he has decided to date. This means that his pardon grant rate is less than 3% (his father's pardon grant rate was double that, and all other 20th century Presidents were well into double digits). In addition, the Office of the Pardon Attorney reports that there are over 700 pardon cases still awaiting presidential action -- many of which were filed during the Clinton administration. (This doesn't count the 2000-odd commutation applications that are presently pending). The quality and quantity of this President's pardon grants are hard to square with his statements about the importance of giving convicted people a second chance.


The morning's sentencing news

It is another morning with newspapers filled with interesting stories on both capital and non-capital sentencing topics. Here's a sample of some of the highlights:

· On the death penalty front, the big news from Virginia, as detailed here and here, comes from state Attorney General Jerry Kilgore's proposed legislation to make it easier for prosecutors to seek the death penalty in cases like the Washington-area sniper killings. In this editorial, the Roanoke Times is already criticizing the AG for "playing politics with life and death."

· In other capital developments up the coast, this editorial from The Republican in Massachusetts advocates that Connecticut not execute serial killer Michael Ross even though there are no doubts about his guilt. (Background on the Ross case can be found here and here.)

· From the Blakely desk, this story from Pittsburgh details the Blakely claims being made by a retired state trooper appealing his 1989 homicide sentence. And this story from St. Louis details that St. Louis Rams player Leonard Little has failed in his attempt, noted previously here, to use Blakely to get his pending felony drunken driving charge dismissed.


December 21, 2004

Everything you wanted to know about Blakely in Indiana

Though, as detailed here and here, I have given up tracking all state Blakely decisions, two Michaels continue to do great work tracking the story of Blakely in Indiana.

As I have noted before, Michael Ausbrook over at INCourts covers the ins and outs of many Indiana Blakely rulings. And today I received from Michael Limrick (a former clerk to Justice Theodore Boehm of the Indiana Supreme Court) a copy of a draft article that will appear in the Jan./Feb. Indiana bar association magazine, Res Gestae. Michael calls the article, which can be downloaded below, "basically an update on what the Indiana Court of Appeals has done so far."

Download limrick_on_blakely_in_indiana.doc


Interesting state Blakely reports

Two interesting newspapers stories this morning on the Blakely beat:

· This article from Oregon discusses the state's continuing efforts to deal with the fallout from Blakely. This article discusses the Oregon Supreme Court's ruling last week in Dilts (detailed here), and notes that lawyers now "disagree about what happens next in Oregon." The article also indicates that these matters are "under review by a task force appointed by Gov. Ted Kulongoski and headed by [state Attorney General] Myers and by a joint legislative committee."

· This article from Missouri mixes Blakely with sports, as it reports that Leonard Little, a member of the St. Louis Rams, is invoking Blakely to try to get his pending felony drunken driving charge dismissed. As the article explains, Little's lawyers have argued in papers "filed with the Missouri Supreme Court that by Missouri law, a judge, not a jury, has decided that Little is a persistent offender, and the statute that makes his pending case a felony therefore fails to pass muster."

I recall that this mysterious blogger encouraged me t

november 18, 2004 - sentencing law and policy · web viewnovember 26, 2004 97. media reports from...

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