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Monday, January 12, 2015
United States v. Booker is exactly 10 years old today, and...
apparently I am the only one to highlight (or perhaps even realize) that today marks a huge milestone in the history of the federal sentencing system and provides a unique moment for extended reflection on what a decade of advisory guidelines has wrought.
Given that sentencing jurisprudence never gets much respect from the usual constitutional law gurus, I suppose I am not all that surprised that the folks at SCOTUSblog or The Volokh Conspiracy are not running some kind of "Booker at 10" commentary symposium. But I suppose I was secretly hoping that maybe the US Sentencing Commission or the federal public defenders or the US Department of Justice or some of the bigger federal sentencing reform advocacy groups would have something notable on their websites about this milestone.
In an effort to fill this notable void, in some coming posts I may try to do some armchair data analyses and comment broadly on what I think a decade of advisory guidelines has wrought. But for now I just wanted to link here to the full 124-page Booker opinion, note that this Booker anniversary is dog that is not barking, and encourage reader commentary about what the lack of attention might mean.
UPDATE: A helpful reader reminded me that I should here note and praise that the Hastings Law Journal, as detailed here, is hosting a terrific symposium next month titled "Federal Sentencing Reform, Ten Years After United States v. Booker." I feel bad I did not flag this before, as I am one of the scheduled speakers on the second of these four planned panels:
- Panel 1: The Economics of Sentencing Reform
- Panel 2: Sentencing Reform & the End of the Drug War
- Panel 3: White Collar Crime Sentencing
- Panel 4: The Judicial Perspective
January 12, 2015 in Booker and Fanfan Commentary, Who Sentences? | Permalink | Comments (6) | TrackBack
Tuesday, October 14, 2014
Refusing to take up acquitted punishment, passive virtues, SCOTUS reputation, and cert-denial-deal speculation
I cannot resist the urge to use this space to reflect upon (and perhaps salve) my disappointment in the learning the certiorari petition in Jones v. US, No. 13-10026 — a case in which I wrote this SCOTUS amicus brief in support of cert — came up only one SCOTUS vote short of making it as the petition today was denied over a dissent authored by Justice Scalia and joined by Justices Thomas and Ginsburg. As I briefly explained in this initial post on the cert denial, I find especially notable and troubling that neither Justices Sotomayor and Kagan provided the key single additional vote for cert given that both were in the majority in two recent cases which, I think, further set a foundation for finding constitutional limits on guideline punishment enhancements based on acquitted conduct.
As I have explained in prior posts and in my Jones amicus brief, in Peugh v. United States, 133 S. Ct. 2072 (2013) (authored by Justice Sotomayor), the Supreme Court clarified that Guideline ranges, even though now only advisory after Booker, still have consequential "force as the framework for sentencing" and thus are subject to at least some constitutional limitations on how they are calculated and applied. Id. at 2083-84. And in Alleyne v. United States, 133 S. Ct. 2151 (2013) (with both Justices Sotomayor and Kagan as key votes to reverse a pre-Blakely/Booker precedent), the Supreme Court overturned a prior holding that had failed to recognize that the constitutional protections of the Fifth and Sixth Amendments apply fully not only to facts raising maximum sentences, but whenever the law creates a "linkage of facts with particular sentencing ranges." 133 S. Ct. at 2159-62.
I continue to believe (or at least want to believe) that the huge acquitted conduct guideline punishment enhancements at issue in Jones have to trouble greatly any Justice who truly accepts the Apprendi-Blakely Sixth Amendment jurisprudence, AND who truly believes the advisory federal sentencing guidelines still have constitutionally-significant legal force (as Peugh holds), AND who truly claims the Constitution is concerned with judicial findings of facts that raise punishment floors as well as ceilings (as Alleyne holds). In other words, I continue to believe (or at least want to believe) that Justices Sotomayor and Kagan would be votes to reverse the sentences at issue in a case like Jones if and when cert is ever granted to review huge acquitted conduct guideline punishment enhancements.
So why wasn't cert granted this time around, especially with Justices Scalia, Thomas and Ginsburg vocally in support of such a grant in Jones? As the title of this post is meant to suggest, I think Justices Sotomayor and Kagan may have concluded it would be virtuous and valuable to be passive in this setting, at least for right now, because any extended SCOTUS consideration of extended acquitted guidelines punishment could give Sixth Amendment rights (and SCOTUS itself) an extended black eye (especially if one or both of them might ultimately be inclined to uphold extended acquitted guidelines punishments in Jones).
I have long hoped for and sought a cert grant on acquitted conduct enhancements because I have long believed jurisprudes on both the left and the right will (and should) have a hard time defending, especially in light of the strong jury-rights rhetoric in cases like Apprendi and Blakely, a federal guideline sentencing system that still recommends huge punishment increases based essentially on judicial rejection of a not-guilty jury verdict. (Notably, the only time SCOTUS directly addressed this issue, in the 1997 Watts case, the Court issued a summary reversal to permit acquitted conduct enhancements and thus prevented full briefing or oral argument on the matter.) But yet again because of another cert denial, we will not learn if Justices Breyer and Kennedy (or even CJ Roberts), who in other settings express concerns about prosecutorial power and excessive sentencing, might be cajoled through full briefing and argument to see the constitutional vices of allowing prosecutors and judges to trump juries in the federal sentencing process.
Finally, once one starts thinking about the possibility that Justices Breyer and Kennedy and even CJ Roberts might have been especially eager right now to dodge full consideration of acquitted conduct punishments, it becomes hard to avoid speculating about "long confernce" deals to deny cert and thereby dodge consideration now of other (higher profile) hard constitutionally issues. As all Court-watchers know, the really big cert-denial news after the SCOTUS long conference involved denials in all the same-sex marriage cases from around the country. Dare I show my ignorance about what really goes on behind SCOTUS doors when I wonder if, at least tacitly, a large block of Justices concluded during the long conference that it was in every Justices' interest to be "deeply in denial." Just a (silly?) thought.
Previous related posts on the Jones case:
- Extended examination of ugliness of acquitted conduct enhancement
- Latest chapter in notable federal acquitted conduct case from DC
- "When Acquitted Doesn't Mean Acquitted"
- DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims
- Notable follow-up thoughts on acquitted conduct and the sentencing of Antwuan Ball
- Rooting for acquitted conduct petition grant from SCOTUS long conference
- Trying not to get too excited about SCOTUS relist in Jones/Ball acquitted conduct case
- Three Justices dissent from denial of certiorari in Jones/Ball acquitted conduct case
October 14, 2014 in Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack
Three Justices dissent from denial of certiorari in Jones/Ball acquitted conduct case
I am very disappointed to have to report that this morning the Supreme Court denied certiorari review in the notable federal drug sentencing case from DC involving Antwan Ball and his co-defendants concerning judicial fact-finding to increase a federal guideline sentence contrary to a jury acquittal. As I noted in this post last week, Jones v. US, No. 13-10026, was relisted by the Justices after their "long conference." Now today's SCOTUS order list has at the very end the news that cert has been denied in Jones v. US, No. 13-10026, with a three-page dissent from that decision authored by Justice Scalia and joined by Justices Thomas and Ginsburg. Mega-bummer!!!
Here is the bulk of Justice Scalia's dissent from the denial of cert in Jones (with emphasis in the original):
A jury convicted petitioners Joseph Jones, Desmond Thurston, and Antwuan Ball of distributing very small amounts of crack cocaine, and acquitted them of conspiring to distribute drugs. The sentencing judge, however, found that they had engaged in the charged conspiracy and, relying largely on that finding, imposed sentences that petitioners say were many times longer than those the Guidelines would otherwise have recommended.
Petitioners present a strong case that, but for the judge's finding of fact, their sentences would have been "substantively unreasonable" and therefore illegal. See Rita v. United States, 551 U.S. 338, 372 (2007) (SCALIA, J., joined by THOMAS, J., concurring in part and concurring in judgment). If so, their constitutional rights were violated. The Sixth Amendment, together with the Fifth Amendment's Due Process Clause, "requires that each element of a crime" be either admitted by the defendant, or "proved to the jury beyond a reasonable doubt." Alleyne v. United States, 570 U. S. ___, ___ (2013) (slip op., at 3). Any fact that increases the penalty to which a defendant is exposed constitutes an element of a crime, Apprendi v. New Jersey, 530 U.S. 466, 483, n. 10, 490 (2000), and "must be found by a jury, not a judge," Cunningham v. California, 549 U. S. 270, 281 (2007). We have held that a substantively unreasonable penalty is illegal and must be set aside. Gall v. United States, 552 U.S. 38, 51 (2007). It unavoidably follows that any fact necessary to prevent a sentence from being substantively unreasonable — thereby exposing the defendant to the longer sentence — is an element that must be either admitted by the defendant or found by the jury. It may not be found by a judge.
For years, however, we have refrained from saying so. In Rita v. United States, we dismissed the possibility of Sixth Amendment violations resulting from substantive reasonableness review as hypothetical and not presented by the facts of the case. We thus left for another day the question whether the Sixth Amendment is violated when courts impose sentences that, but for a judge-found fact, would be reversed for substantive unreasonableness. 551 U.S., at 353; see also id., at 366 (Stevens, J., joined in part by GINSBURG, J., concurring) ("Such a hypothetical case should be decided if and when it arises"). Nonetheless, the Courts of Appeals have uniformly taken our continuing silence to suggest that the Constitution does permit otherwise unreasonable sentences supported by judicial factfinding, so long as they are within the statutory range....
This has gone on long enough. The present petition presents the nonhypothetical case the Court claimed to have been waiting for. And it is a particularly appealing case, because not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense. Petitioners were convicted of distributing drugs, but acquitted of conspiring to distribute drugs. The sentencing judge found that petitioners had engaged in the conspiracy of which the jury acquitted them. The Guidelines, petitioners claim, recommend sentences of between 27 and 71 months for their distribution convictions. But in light of the conspiracy finding, the court calculated much higher Guidelines ranges, and sentenced Jones, Thurston, and Ball to 180, 194, and 225 months' imprisonment.
On petitioners' appeal, the D. C. Circuit held that even if their sentences would have been substantively unreasonable but for judge-found facts, their Sixth Amendment rights were not violated. 744 F. 3d 1362, 1369 (2014). We should grant certiorari to put an end to the unbroken string of cases disregarding the Sixth Amendment — or to eliminate the Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are substantively reasonable.
I am especially disappointed that Justice Scalia and his joiners here could not garner one more vote to grant cert from any of the newer Justices who came on the Court after Blakely and Booker became the Sixth Amendment law of the land. Of course, Justice Alito has frequently shown his disaffinity for expanding the Sixth Amendment rights recognized in those cases. But Chief Justice Roberts joined the Blakely gang in applying (and arguably expanding) Sixth Amendment rights in Cunningham v. California and Justices Sotomayor and Kagan have "shown empathy" for defendants seeking expanded applications of the Sixth Amendment in more recent cases such as Alleyne. As I will explain in a future post, anyone (like me) hoping that Justices Sotomayor and Kagan might end up being even more committed to defendants' procedural rights at sentencing has to be deeply troubled by their disinclination to provide a fourth vote for granting cert in Jones.
Previous related posts on this case and acquitted conduct sentencing enhancements:
- Rooting for acquitted conduct petition grant from SCOTUS long conference
- Trying not to get too excited about SCOTUS relist in Jones/Ball acquitted conduct case
- Extended examination of ugliness of acquitted conduct enhancement
- Latest chapter in notable federal acquitted conduct case from DC
- "When Acquitted Doesn't Mean Acquitted"
- DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims
- Notable follow-up thoughts on acquitted conduct and the sentencing of Antwuan Ball
- Strong commentary on acquitted conduct sentencing
- Sincere questions about acquitted conduct sentencing
- Amicus brief in Sixth Circuit acquitted conduct case focused on statutory issues
October 14, 2014 in Advisory Sentencing Guidelines, Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack
Sunday, October 12, 2014
"Confronting Cognitive 'Anchoring Effect' and 'Blind Spot' Biases in Federal Sentencing: A Modest Solution for Reforming a Fundamental Flaw"
The title of this post is the title of this intriguing new paper by U.S. District Judge Mark Bennett. Here is the abstract:
Cognitive "anchoring effect" bias, especially related to numbers, like sentencing guidelines ranges, is widely recognized in cognitive psychology as an extremely robust and powerful heuristic. It is a cognitive shortcut that has a strong tendency to undermine judgments by "anchoring" a judgment to an earlier disclosed number, the anchor. Numerous studies prove anchoring bias produces systematic errors in judgment in wide-ranging circumstances, including judgments by experts — doctors, lawyers, real estate agents, psychologists, and auditors — as well as a variety of decisions by foreign and American federal and state judges. The anchoring effect occurs even when the anchor is incomplete, inaccurate, irrelevant, implausible, or even random.
Roughly corresponding in time with the developing understanding of the anchoring effect, federal sentencing has undergone a revolution from judges having virtually unlimited discretion, to virtually no discretion, and back to considerable discretion, as the Federal Sentencing Guidelines went from mandatory to advisory in a single monumental U.S. Supreme Court decision, United States v. Booker, 543 U.S. 220 (2005). Surprisingly, since judges were granted much greater discretion in Booker, the length and severity of federal sentences, for the most part, has not changed. This remains true despite long-standing, persistent, and widespread dissatisfaction among federal district court judges with the Guidelines and the length of sentences. This Article argues that this is because judges' sentences are subconsciously anchored by the calculated Guidelines range.
This Article offers a simple, modest, and practical solution that requires no change in existing law by the Supreme Court or Congress. It simply requires rearranging the numerical anchoring information in the presentence report and adding additional relevant numerical information to counteract the anchoring effect of the Guidelines. If federal district court judges are educated about the effect of cognitive anchoring and their own bias-based blind spots to it — their improved awareness can only enhance the fairness of sentencing.
October 12, 2014 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack
Wednesday, August 27, 2014
"Rebellion: The Courts of Appeals' Latest Anti-Booker Backlash"
The title of this post is the title of this notable new essay about federal sentencing and appellate practices by Alison Siegler available via SSRN. Here is the abstract:
For over twenty-five years, federal courts of appeals have rebelled against every Supreme Court mandate that weakens the United States Sentencing Guidelines. Since the Court made the Guidelines advisory in United States v Booker, the rebellion has intensified, with the appellate courts consistently ensuring adherence to the Guidelines by over-policing sentences that fall outside the Guidelines and under-policing within-Guidelines sentences. The courts of appeals are now staging a new revolt, creating appellate rules — carve-outs — that enable them to reject meritorious challenges to within-Guidelines sentences.
Part I describes the previous rebellions. Part II introduces the current rebellion. Part II.A discusses what I term the "stock carve-out," an appellate rule that violates the sentencing statute and the Sixth Amendment by allowing sentencing judges to ignore mitigating arguments regarding defendants' personal characteristics. Part II.B discusses the "§ 3553(a)(6) carve-out," a rule that similarly violates the statute and precedent by allowing sentencing judges to ignore disparity arguments. Part III concludes.
August 27, 2014 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack
Thursday, March 20, 2014
"Sentencing in Tax Cases after Booker: Striking the Right Balance between Uniformity and Discretion"
The title of this post is the title of this new paper by Scott Schumacher now available via SSRN. Here is the abstract:
It has been nearly ten years since the Supreme Court's seminal decision in United States v. Booker, in which the Court invalidated the mandatory application of the United States Sentencing Guidelines. In the cases that followed, the Court addressed subsidiary issues regarding the application of the Guidelines and the scope of appellate review. However, despite — or perhaps because of — these opinions, there is little consensus regarding the status and extent of appellate review, as well as the discretion afforded sentencing courts. More troubling, what consensus there is seems to permit judges to impose any sentence they wish, as long as the appropriate sentencing procedures are followed. As a result, we are in danger of returning to "the shameful lack of parity, which the Guidelines sought to remedy."
The Sentencing Reform Act and the Sentencing Guidelines were designed to reduce disparity in sentencing and to reign in what one commentator described as a "lawless system." However, the Guidelines as ultimately conceived drastically limited the sentencing judge's ability to impose a sentence that was appropriate for the conduct and culpability of the defendant, creating a different kind of sentencing disparity. The current, post-Booker system provides more guidance than the pre-Guidelines system, but permits sentencing judges to disregard the Guidelines and develop their own sentencing policy. As a result, rather than having a system that allows for sentences to be tailored to individual defendants, the current system allows sentences to be imposed based on the penal philosophy of individual judges. This will inevitably lead to unwarranted sentencing disparity.
This article traces the recent history of criminal sentencing and, relying on the influential works of John Rawls and H.L.A. Hart on theories of punishment, argues for a better system that allows for both guidance to sentencing judges and appropriately individualized sentencing. My recommendation, although equally applicable to any federal sentence, will be examined through the lens of tax sentencing.
March 20, 2014 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Sunday, March 02, 2014
Has anyone formally calculated exactly how very few federal sentences are found unreasonable?
The question in the title of this post is prompted by two noteworthy (or perhaps not really noteworthy) circuit opinions from last week in which two way-above-guideline sentences were affirmed as reasonable by the panels of the First and Seventh Circuits in US v. Santiago-Rivera, No. 13-1228 (1st Cir. Feb. 28, 2014) (available here); US v. Castaldi, No. 10-3406 (7th Cir. Feb. 24, 2014) (available here). In both cases, a defendant appealed as unreasonable the imposition of a prison sentence roughly a decade longer than the (already lengthy) prison term suggested by the applicable guidelines. In both cases, the panel found the way-above-guideline sentence procedurally and substantively reasonable (though one Seventh Circuit judge dissented in Castaldi).
At one level, these two rulings highlight how increased district court discretion to sentence outside the guidelines will often be used enhance sentences involving serious and harmful crimes. (Castaldi involved a big Ponzi scheme impacting many persons, Santiago-Rivera involved a police officer shooting.) In addition, both rulings show that circuits may be especially inclined to find way-above-guideline sentences reasonable, even more so than way-below-guideline sentences. (I cannot readily think of one, let alone two, sentences set a full decade below the calculated guideline sentence upheld after an appeal by the government.) But, as the title of this post suggests, perhaps the broader story is how very few federal sentences are even found unreasonable.
Booker has been the federal sentencing law of the land since 2005, but the true era of modern reasonableness review likely should be defined as starting in December 2007 after the Supreme Court handed down the last of the troika of reasonableness review cases via Gall, Kimbrough and Rita. Since those opinions were issued, we have probably had over 500,000 federal sentences imposed, and I suspect that less than 250 have been found procedurally unreasonable on appeal and less than 50 have been found substantively unreasonable. (This federal defender document titled Appellate Decisions After Gall (and updated through early December 2013) provides the most complete accounting of reasonableness rulings that I have seen.)
In other words, based on this very rough assessment of reasonableness review outcomes compared to sentences imposed, it would seem that in only about one of every 2,000 federal sentencings does something go procedurally wrong and in only one of every 10,000 federal sentencings involves some substantive unreasonableness. (Of course, the vast majority of federal sentences are not appealed, in part due to the wide use of appeal waivers in plea agreements, so the outcomes of appeals is not the ideal measuring stick here. Still, I think these numbers are telling.)
For a lot of reasons, the prospect of reasonableness review may do a lot more work and have a lot more influence than the so-very-rare reversal of a sentence as unreasonable would suggest. Still, I have largely given up my prior habit of regularly report notable federal circuit rulings concerning reasonableness appeals in part because affirmances in cases like Castaldi and Santiago-Rivera are, statistically speaking, not really notable.
UPDATE: I just noticed that a Fourth Circuit panel also issued an opinion on the same day as the First Circuit opinion linked above that affirms as reasonable a sentence set about 8 years above the guideline range in US v. Washington, No. 13-4132 (4th Cir. Feb. 28, 2014) (available here).
March 2, 2014 in Booker and Fanfan Commentary, Booker in the Circuits, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack
Sunday, January 19, 2014
"More than a Formality: The Case for Meaningful Substantive Reasonableness Review"
The title of this post is the title of this astute new Note just published in the January 2014 issue of the Harvard Law Review. Here is the Note's introduction:
Appellate review of sentencing is under assault. When the Supreme Court rendered the Federal Sentencing Guidelines nonbinding in United States v. Booker, it established appellate review of federal sentences for reasonableness to cabin sentencing judges' newly acquired discretion. The substantive component of this review — which authorizes appellate courts to vacate those sentences that reflect clear errors in judgment or that are excessively disproportionate — is a fundament of the post-Booker sentencing regime, but one that courts have struggled to implement. Indeed, a troubling consensus is emerging that substantive reasonableness review is unworkable or even undesirable. Such views neglect unwarranted disparities in sentences and threaten to disrupt the feedback loop between courts and the U.S. Sentencing Commission (the Commission) that appellate review was intended to serve. If sentencing is to be fair, appellate courts must do better. This Note argues that they can.
This Note proceeds in five parts. Part I surveys the history of appellate review of federal sentences. Part II relies on case law and recent statements by a variety of stakeholders to examine the state of substantive reasonableness review in the circuit courts. Part III defends meaningful substantive reasonableness review as essential to promoting fairness and uniformity in federal sentencing. Part IV identifies ways in which the courts and the Commission can work toward a more effective and stable system of substantive review. Part V concludes.
January 19, 2014 in Booker and Fanfan Commentary, Booker in the Circuits, Kimbrough reasonableness case, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Monday, November 11, 2013
"Sentence Appeals in England: Promoting Consistent Sentencing through Robust Appellate ReviewThe title of this post is the title of this notable new paper authored by Briana Rosenbaum now available via SSRN. Here is the abstract:
Unlike in most areas of the law, federal courts of appeals in the United States defer to trial courts on many issues of sentencing law and policy. As a result, the power to decide sentencing law and policy is often at the discretion of individual district court judges. Law reform scholars have long decried the disparity, lack of transparency, and legitimization concerns that this practice raises. These concerns are heightened in the post-Booker sentencing regime, where the advisory nature of the Federal Sentencing Guidelines undermines those Guidelines' ability to further sentencing consistency.
The deferential approach to federal sentence appeals is in sharp contrast to the approach in England, where the appellate court conducts de novo review of sentencing law and policy to develop a common law of sentencing that is independent of the English sentencing guidelines. The English model of appellate review suggests a new way to design the role of appellate courts in the federal system: from bodies that merely enforce guidelines to further consistency of sentencing outcomes, to bodies that develop sentencing law to further consistency of sentencing approach.
In this paper, I explore the primary functional, institutional, and normative arguments behind the resistance to robust appellate review in the federal appellate courts and study the English model as a means of evaluating these critiques. Ultimately, I suggest that the federal courts of appeals borrow England's "mixed deference approach" to sentence appeals, including de novo review of sentencing law and principles. Doing so will promote greater sentencing consistency without either over-enforcement of the Guidelines or unwarranted encroachment of sentencing discretion.
November 11, 2013 in Booker and Fanfan Commentary, Booker in the Circuits, Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (0) | TrackBack
Monday, September 30, 2013
Advice for the US Sentencing Commission from former USDJ Nancy GertnerI am genuinely unsure if the US Sentencing Commission gets to keep working if we end up having a federal government shut-down this week. But I am sure that the USSC starts an official new fiscal year as of tomorrow morning and that any government shut-down is not going to keep federal defendants from being sentenced and that the USSC will be up-and-running in some capacity both sooner and later. For those reasons, I am pleased right now to be able to post these comments sent my way by former federal district judge (and now Harvard law professor) Nancy Gertner about what the USSC ought to be doing as FY 2014 in the federal sentencing system gets underway:
At a time when the "common law of sentencing," is being shaped in federal district courts, why does the Sentencing Commission only post Circuit Court decisions on its web site? In 2012, sentences that had been appealed on the grounds of unreasonableness were affirmed 95 percent of the time. And that rate has remained steady on the national level: In 2011, the affirmance rate was roughly 94 percent; in 2010 it was approximately 96 percent; and in 2009, 97 percent affirmances. In my circuit, the First Circuit, not a single sentence was deemed unreasonable on appeal in 2011 or 2012, and only a handful of cases qualified in the immediately preceding years. In effect, as with other areas of law where the standards of review are forgiving (think evidentiary appeals on forensic issues which are reviewed for "abuse of discretion" and rarely overturned), the appellate courts are not defining substantive sentencing standards, and imposing only minimal procedural ones.
Clearly most of the meaningful sentencing developments -- the substantive sentencing standards, the guideline analysis and trenchant critique -- are happening at the district court level in the decisions of judges like John Gleeson and Jack Weinstein (S.D.N.Y.), Mark Bennett (N.D. Iowa), Ellen Huvelle (D.C.), Paul Friedman (D.C.) and Lynn Adelman (E.D. Wisconsin). While not all judges take the time to write formal sentencing opinions, those that do should have their work circulated by our "expert" Commission rather than being ignored.
If the Commission is interested in minimizing disparity in sentencing in a post-Booker world (which should be one of its goals -- hardly the only one), what better way than to make certain that the opinions of district court judges are communicated more broadly to the federal bench? When these judges offer a reasoned analysis of the Guidelines or an alternative way of analyzing the cases, why not ensure that other judges see their work and decide whether to follow it? Other judges can look at their reasoning– not as binding precedent, but as a template for the cases they see, e.g. here's one approach to firearms cases, non violent drug offenders, white collar cases, etc. If a common law of sentencing is ever to evolve -- supplementing (or in some cases supplanting) the Guidelines -- why not assist in its development? In a common law system, decisional law establishes standards. Uniformity is not enforced from above -- as in civil code countries -- but evolves from reasoned judicial decisions. In effect, with advisory Guidelines, we have a hybrid system -- Guidelines and decisional law.
To look at the Commission web site, there is only one orthodoxy -- the Guidelines, and Appellate Court decisions that rarely say much of anything. In fact, the message conveyed by the web site is that the Commission is not interested in uniformity as a general matter, just one kind of uniformity -- the uniform enforcement of its flawed product, the U.S. Sentencing Guidelines. Teach the Guidelines. Describe appellate court decisions affirming whatever the district courts do without meaningful analysis. Ignore the fine work of the judges trying to create meaningful standards where it counts the most, in the sentencing of individuals.
September 30, 2013 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack
Saturday, August 10, 2013
"Parole: Corpse or Phoenix?"The title of this post is the title of this very interesting looking new paper authored by Paul Larkin Jr. of The Heritage Foundation and now available via SSRN. Here is the abstract:
For most of the twentieth century, the federal government used an indeterminate sentencing system at the front end of the correctional process and a parole system at the back end in order to determine when an offender should be released from prison. In 1984, Congress sought completely to revise the federal sentencing and correctional processes. Congress adopted a mandatory sentencing guidelines system in order to restrain the discretionary sentencing authority that federal courts traditionally had enjoyed. Congress rejected an advisory guidelines system because Congress believed that such a process would not eliminate the sentencing disparities that had plagued the federal criminal justice system for decades. Because the new mandatory guidelines would both regularize the sentencing decision and determine when a prisoner would be released, Congress repealed the federal parole laws as being unnecessary. The Supreme Court upheld the constitutionality of the new system over separation of challenges in Mistretta v. United States, 488 U.S. 361 (1989), and parole seemed to have passed into history.
Sixteen years later in United States v. Booker, 543 U.S. 220 (2005), however, the Court held that the same mandatory sentencing guidelines system upheld in Mistretta violated a defendant's rights under the Sixth Amendment Jury Trial Clause. Booker and later decisions have made the federal sentencing guidelines advisory. The problem is that Congress rejected an advisory guidelines system and would not have repealed the parole laws if the federal sentencing process did not strictly constrain district courts' sentencing authority. One of the consequences of the Booker decision, accordingly, is that federal sentencing now is susceptible to the same disparities that Congress sought to remedy with mandatory determinate sentencing guidelines in 1984. The article discusses the question whether the Booker decision has breathed new life into the federal parole laws now that the condition precedent for their repeal, adoption of a mandatory sentencing guidelines system, is no longer in effect.
August 10, 2013 in Advisory Sentencing Guidelines, Booker and Fanfan Commentary, Procedure and Proof at Sentencing | Permalink | Comments (6) | TrackBack
Monday, June 17, 2013
First-cut reactions as to what is big, and not so big, about Alleyne's reversal of Harris
I will likely have a lot to say about the specifics of the Sixth Amendment discussions in all the Alleyne opinions later today once I get more time to review the decision more closely. But I have three quick reactions about the ruling and its potential impact I wanted to share right away. I will give this trio of reactions these labels: big, not-so-big, could-be-huge.
The Big of Alleyne: though serious talk of a "Booker" fix to the advisory guidelines sentencing system has not had much juice for a very long time, the Alleyne ruling serves as a final nail in the "mandatory topless guidelines" idea that made the rounds as a potential legislative response to Blakely and Booker in the federal system. That "fix," which would have required judges to do fact-finding to raise guideline minimums without impacting maximums, depended on the validity and vitality of Harris. And Harris is now a goner.
The No-So-Big of Alleyne: though persons imprisoned now based on mandatory minimums triggered by judicial fact-finding might hope Alleyne is a new jurisprudential key to freedom, a host of doctrices may ensure very few new imprisoned persons get much benefit from Alleyne. For starters, the retroactivity doctrines of Teague and AEDPA may make it hard for those long ago sentenced to get their Alleyne claims even heard in court. Moreover, the harmeless error doctrines of Cotton and Recuenco may make it easy now for judges to say, even in those cases in which the issue can still be raised, that any Sixth Amendment error was harmless.
The Could-Be-Huge of Alleyne: there are any number of shaky exceptions and carve-outs to the full application of Apprendi doctrines, ranging from the prior-conviction exception of Almendarez-Torres to all sorts of efforts by lower courts to refuse to acknowledge Apprendi's potential impact on all sorts of judicial fact-finding that impacts punishment realities. If Alleyne (which comes just a year after Southern Union) portends a Court now willing and eager to keep taking up Apprendi issues and extending the reach of the Sixth Amendment, we all might be in for quite an interesting Sixth Amendment ride over the next few Term. (And, for the really creative, perhaps Alleyne could be combined with Peugh to perhaps even generate procedural protections even for federal defendants sentencing in a post-Booker world.)
Prior related post on Alleyne ruling:
- Per Justice Thomas in 5-4 SCOTUS split, Alleyne extends Sixth Amendment to findings triggering mandatory minimums
June 17, 2013 in Almendarez-Torres and the prior conviction exception, Apprendi / Blakely Retroactivity , Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack
Thursday, June 13, 2013
"The Non-Redelegation Doctrine" with post-Booker sentencing in mindNow available via SSRN is this intriguing new article from F. Andrew Hessick III and Carissa Byrne Hessick, which is titled simply "The Non-Redelegation Doctrine." Here is the abstract, which highlights why this article should be of special interest to sentencing fans:
In United States v. Booker, the Court remedied a constitutional defect in the federal sentencing scheme by rendering advisory the then-binding sentencing guidelines promulgated by the U.S. Sentencing Commission. One important but overlooked consequence of this decision is that it redelegated the power to set sentencing policy from the Sentencing Commission to federal judges. District courts now may sentence based on their own policy views instead of being bound by the policy determinations rendered by the Commission.
This Essay argues that, when faced with a decision that implicates a delegation, the courts should not redelegate unless authorized by Congress to do so. The proposed non-redelegation doctrine rests on both constitutional and practical grounds. Constitutionally, because delegation defines how Congress chooses to perform its core function of setting policy, judicial redelegation raises substantial separation of powers concerns. Practically, judicial redelegation is bound to affect the substantive policies that are adopted because the policies that the agent adopts depend on the agent's unique characteristics and preferences. Although this Essay uses Booker to illustrate the need for the presumption, the presumption would apply equally to the myriad contexts in which Congress delegates its power to make policy and courts have the opportunity to alter that delegation.
June 13, 2013 in Booker and Fanfan Commentary, Booker in district courts, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack
Monday, June 10, 2013
Guidelines are "the lodestone" of federal sentencing (as well as "the starting point and the initial benchmark")The title of this post is drawn from the key word in a key paragraph that captured my attention in what is otherwise a straight-forward opinion by the Supreme Court today in Peugh (basics here). Here is the context from a paragraph that effectively summarizes the conclusions of the Peugh majority opinion per Justice Sotomayor:
Major kudos to Justice Sotomayor for adding a fitting new term to the post-Booker federal sentencing lexicon. Kudos also to the majority Court for stressing these enduring modern federal sentencing realities in the course of reaching its conclusions:
"The federal system adopts procedural measures intended to make the Guidelines the lodestone of sentencing. A retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation."
When Peugh committed his crime, the recommended sentence was 30 to 37 months. When he was sentenced, it was 70 to 87 months.... Such a retrospective increase in the measure of punishment raises clear ex post facto concerns. We have previously recognized, for instance, that a defendant charged with an increased punishment for his crime is likely to feel enhanced pressure to plead guilty. See Carmell, 529 U.S., at 534, n.24; Weaver, 450 U.S., at 32. This pressure does not disappear simply because the Guidelines range is advisory; the defendant will be aware that the range is intended to, and usually does, exert controlling influence on the sentence that the court will impose....
On the Government's account, the Guidelines are just one among many persuasive sources a sentencing court can consult, no different from a "policy paper." Brief for United States 28. The Government's argument fails to acknowledge, however, that district courts are not required to consult any policy paper in order to avoid reversible procedural error; nor must they "consider the extent of [their] deviation" from a given policy paper and "ensure that the justification is sufficiently compelling to support the degree of the variance," Gall, 552 U.S., at 50. Courts of appeals, in turn, are not permitted to presume that a sentence that comports with a particular policy paper is reasonable; nor do courts of appeals, in considering whether the district court's sentence was reasonable, weigh the extent of any departure from a given policy paper in determining whether the district court abused its discretion, see id., at 51. It is simply not the case that the Sentencing Guidelines are merely a volume that the district court reads with academic interest in the course of sentencing.
And kudos also to Justice Thomas for providing a slightly competing vision of the post-Booker world via passages in his dissent like the following that, I suspect, will end up in many more defense sentencing submissions than government ones:
[T]he Guidelines do not constrain the discretion of district courts and, thus, have no legal effect on a defendant's sentence. Second, to the extent that the amended Guidelines create a risk that a defendant might receive a harsher punishment, that risk results from the Guidelines' persuasive force, not any legal effect....
Petitioner next argues that the Guidelines limit district court discretion because sentences falling outside the Guidelines are more likely to be reversed for substantive unreasonableness. Brief for Petitioner 25. I doubt, however, that reversal is a likely outcome when a district judge can justify his sentence based on agreement with either of two Guidelines — the old or the new. If a district court calculated the sentencing range under the new Guidelines but sentenced the defendant to a below-Guidelines sentence that fell within the range provided by the old Guidelines, it would be difficult to label such a sentence "substantively unreasonable." To do so would cast doubt on every within-Guidelines sentence issued under the old Guidelines.
I have long suggested that defense attorneys regularly and in every case calculate, and submit to a sentencing court prior to sentencing, the "old" sentencing ranges that would have applied under the original 1987 version of the federal sentencing guidelines which were first promulgated by the original US Sentencing Commission. The above-quoted passages from Justice Thomas now would enable sentencing courts to feel confident that a sentence within the range suggested by the 1987 guidelines should nearly always be deemed reasonable.
June 10, 2013 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack
SCOTUS concludes Ex Post Facto Clause still limits application of new guidelines after BookerThanks to the fine folks live-blogging at SCOTUSblog, I can provide this summary report (with a few edits) of the one big sentencing ruling handed down by the US Supreme Court this morning:
Justice Sotomayor for the Court in Peugh v. United States....
The decision of the Seventh Circuit is reversed, the case is remanded. The Court is splintered. Justice Sotomayor delivers the opinion of the Court except for one part. The Ex Post Facto Clause is violated when a defendant is sentenced under guidelines promulgated after he committed his acts, and the new version of the guidelines provides for a higher sentence than the one in effect at the time he committed his act.
Justice Sotomayor's opinion is for the Court except for a discussion about the policies underlying the Ex Post Facto Clause. It's another case where Justice Kennedy joins the more liberal members of the Court.
Justice Thomas dissents, joined by the Chief and Scalia and Alito. Justice Alito dissents, joined by Justice Scalia. Justices Ginsburg, Breyer, and Kagan join all of the Sotomayor opinion; Justice Kennedy declines to join Part III-C.
The big fight in the case was whether the Sentencing Guidelines are important enough to trigger Ex Post Facto review given that they are no longer binding -- the majority says they are....
The part of the Sotomayor opinion that Kennedy does not join is a response to the argument by the government and the dissent that the Ex Post Facto Clause is not implicated by this case. The ruling will be significant to the ability of courts to apply tougher new sentencing guidelines to pending cases. It is also a strong reaffirmation of the Ex Post Facto Clause.
The full opinions in Peugh are available here. The opinion for the Court per Justice Sotomayor runs 20 pages, and the main dissent per Justice Thomas is 14 pages.
Kudos to the Court in keep this one relatively brief, as I suspect every sentence from the Justices in this case could end up having some impact on the operation of the post-Booker federal sentencing world. And once I get some time to read these opinions, I will do some follow-up posts on whether Peugh passes the smell test (get it..., I know, pretty lame).
June 10, 2013 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (7) | TrackBack
Thursday, February 21, 2013
US Sentencing Commission website back in action with full Booker report and FY 2012 sentencing data
I am very pleased to have discovered tonight that the US Sentencing Commission, just less than a month after Anonymous hacked into its website (basic here), now has its website up and running again. And not only is the USSC website back, but it is now better than ever with these two new big sets of materials:
NEW Report to Congress on the Continuing Impact of United States v. Booker on Federal Sentencing
This report assesses the continuing impact on the federal sentencing system of the Supreme Court's decision in United States v. Booker.
NEW Final FY12 Quarterly Sentencing Update
This report includes an extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during fiscal year 2012. The report also provides an analysis of sentencing trends over five years for several key sentencing practices.
Congrats to the USSC for getting its on-line house back in order. I for one truly missed the USSC website when it was gone.
Recent related posts:
- US Sentencing Commission releases (and provides on-line here only) new Booker report
- Summary of key USSC findings in its big new Booker report
- Wall Street Journal covers USSC's new Booker report (and its unusual coverage)
February 21, 2013 in Booker and Fanfan Commentary, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack
Tuesday, February 19, 2013
"Doing Kimbrough Justice: Implementing Policy Disagreements with the Federal Sentencing Guidelines"The title of this post is the title of this newly available piece via SSRN authored by Scott Michelman and Jay Rorty. Here is the abstract:
Federal sentencing law is in the midst of a period of profound change. In 1984, responding to concerns about excessive judicial discretion in sentencing, Congress created the United States Sentencing Commission to promulgate the United States Sentencing Guidelines (Guidelines), a complex and mandatory schedule of federal criminal sentences based on a multitude of offense- and offender-specific factors. The Guidelines were introduced in 1987 and governed federal sentencing for nearly twenty years. But in 2005, the Supreme Court held that the Guidelines, by requiring judges instead of juries to find facts that could increase a defendant's sentence, violated the Sixth Amendment. The Court's remedy was to render the Guidelines advisory only -- a starting point but not necessarily the endpoint for sentencing decisions.
Over the past several years, the Supreme Court and the lower federal courts have had to answer a range of questions about how the new advisory Guideline system would work in practice. Among the most consequential were the procedural question of how a district court should apply the now-advisory Guidelines, and the substantive question of whether a court could vary from the Guidelines on the basis of a policy disagreement with the Guidelines themselves rather than the circumstances of an individual defendant.
The Supreme Court answered these two crucial questions in the Gall and Kimbrough cases in December 2007, yet these two decisions seemed to talk past each other in terms of sentencing procedure. Kimbrough authorized policy-based variances. Gall instructed courts how to apply the advisory Guidelines in individual cases. But neither case explained how or when in the sentencing process courts should apply the policy-based variances the Court had just authorized. The result has been a lack of procedural uniformity among district courts applying policy-based variances, with most courts mingling policy and individualized considerations without specifying the role of each factor in determining sentences. Most courts have not even acknowledged, much less attempted to bridge, the gap between the substantive sentencing considerations authorized in Kimbrough and the procedural roadmap laid out in Gall. Academic discourse has likewise left this issue unaddressed.
This Article urges courts to reconcile Kimbrough and Gall by adding an analytical step to the sentencing process through which courts can explicitly apply policy considerations separately from, and prior to, individualized considerations. The blending of policy- and individual-based factors in sentencing adversely affects both the fairness of individual sentences and the development of the Sentencing Guidelines themselves. When courts blend different types of variances together, it is more difficult for them to exercise fully each type of discretion available under the advisory Guideline regime. Additionally, the Sentencing Commission relies on a continuing dialogue with district courts to fulfill its perpetual responsibility of refining the Guidelines based on empirical data and national experience; a clear articulation of courts' grounds for variance, therefore, provides vital information about how the Guidelines can be improved. The creation of an independent analytical step will ensure faithfulness to Kimbrough and due consideration of each facet of the sentencing court's discretion. The result will be a sentencing process that is more precise, more transparent, and ultimately fairer.
February 19, 2013 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Kimbrough reasonableness case, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0) | TrackBack
Sunday, February 17, 2013
If you are eager for access to all parts of the new US Sentencing Commission Booker report...
Federal practitioner Mark Allenbaugh has posted via this special page (which is part of his firm website) all the separate parts of the US Sentencing Commission's massive report on the post-Booker federal sentencing system.
Regular readers will recall that I had the honor, via this post, of being the first website to post Part A of the new USSC Booker report (and an accompanying press release) due to the technical difficulties facing the USSC website thanks to the Anonymous scoundrals. I has been hoping, now a full three weeks after the US Sentencing Commission's website was hacked up and taken down, that the USSC would have its on-line home back in working order. But, as of this writing, the USSC's main webpage is still "under construction."
Word among those in the know is that, within the next few weeks, the US Sentencing Commission will also be releasing a big new report about federal child porn sentencing. I remain hopeful that the USSC's website will be back in action by the time the CP report is ready. But I suppose only time will tell.
Recent related posts:
- US Sentencing Commission releases (and provides on-line here only) new Booker report
- Summary of key USSC findings in its big new Booker report
- Wall Street Journal covers USSC's new Booker report (and its unusual coverage)
February 17, 2013 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack
Friday, February 01, 2013
Summary of key USSC findings in its big new Booker report
As explained here, unfortunately, wascally on-line wabbits have so far managed to allow only the first big part of US Sentencing Commission super-sized new Booker report to be available on-line only via this SL&P link. Fortunately, because others are primarily in charge of chasing down the annoying anonymous hackers (and because the NRA is primarily in charge of making sure all the rest of us have a right to use maximum firepower when hunting other forms of wabbits), I can spend my time trying to take stock of all the incredible effort and research reflected in the part of the new USSC Booker report now available for general consumption.
Though I am still just start to scratch the massive surface of the mass of information in just the first part of the new USSC Bookerreport, I can begin some assessment of what's in there by first praising the Commission for having a handy list of bolded "key findings" summarized in the first chapter. Here, in full text, are all the bolded key findings set out in the report's Overview chapter [with my own numbers added]:
[1] The number of federal offenders has substantially increased, and most federal offenders have continued to receive substantial sentences of imprisonment.
[2] The guidelines have remained the essential starting point for all federal sentences and have continued to influence sentences significantly.
[3] The influence of the guidelines, as measured by the relationship between the average guideline minimum and the average sentence, has generally remained stable in drug trafficking, firearms, and immigration offenses, but has diminished in fraud and child pornography offenses.
[4] For most offense types, the rate of within range sentences has decreased while the rate of below range sentences (both government sponsored and non-government sponsored) has increased over time.
[5] The influence of the guidelines, as measured by the relationship between the average guideline minimum and the average sentence, and as measured by within range rates, has varied by circuit.
[6] The rates of non-government sponsored below range sentences have increased in most districts and the variation in such rates across districts for most offenses was greatest in the Gall period, indicating that sentencing outcomes increasingly depend upon the district in which the defendant is sentenced.
[7] For offenses in the aggregate, the average extent of the reduction for non-government sponsored below range sentences has been approximately 40 percent below the guideline minimum during all periods (amounting to average reductions of 17 to 21 months); however, the extent of the reduction has varied by offense type.
[8]Prosecutorial practices have contributed to disparities in federal sentencing.
[9] Variation in the rates of non-government sponsored below range sentences among judges within the same district has increased in most districts since Booker, indicating that sentencing outcomes increasingly depend upon the judge to whom the case is assigned.
[10] Appellate review has not promoted uniformity in sentencing to the extent the Supreme Court anticipated in Booker.
[11] Demographic factors (such as race, gender, and citizenship) have been associated with sentence length at higher rates in the Gall period than in previous periods.
I do not think any of these key findings are especially surprising, though I suspect some (many?) will still prove to be somewhat controversial. Most fundamentally, I am certain that all of these findings could be "spun" in any number of ways in any number of settings. For example, I think one might reasonably wonder whether finding 8 concerning prosecutors contributing to disparties best explains finding 11 concerning increased demographic disparities. (Also, it is especially interesting to consider how one might spin findings 2 and 5 and 6 in the on-going Supreme Court litigation concerning the application of ex post facto doctrines in the post-Booker advisory guideline system.)
All these key findings should and likely will engender lots of discussion and debate in the weeks ahead. For now, though, I am eager to hear from readers about which particular finding they consider most important or least important (or, perhaps, least likely to get enough attention or most likely to get too much attention). As one who has long been concerned that federal sentencing severity and the overall growth in the total number federal defendants gets too little attention while disparity gets too much attention, I will assert that finding 1 above and the realities it reflects is really the most important big-picture take-away point. I have a feeling, though, that others may have distinct views.
Recent related post:
February 1, 2013 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack
Thursday, June 28, 2012
The cites to and echoes of Booker in today's SCOTUS health care ruling
In the comments to this prior post, DEJ makes this observation: "After holding the Medicaid expansion unconstitutional, the Court had to decide the remedy for violating the Spending Clause: Must the entire expansion fall or does it remain in some form? And how, exactly, did the plurality come to its remedy? By looking to the Booker remedy opinion: "In considering that question, '[w]e seek to determine what Congress would have intended in light of the Court's constitutional holding.' United States v. Booker, 543 U. S. 220, 246 (2005)." Booker is twice cited by the plurality to support its remedy."
In addition, a thoughtful law grad from my alma mater, Rajiv Mohan, sent me this e-mail to not "how similar [the ACA ruling] is to Booker":
In both cases, legislative innovations -- if not limited -- threatened deeply-held constitutional principles: the right to trial by jury on the one hand, and enumerated powers on the other.
In both cases, the proposed limiting principle is oddly formalistic and susceptible to legislative circumvention. The Apprendi principle, after all, could be circumvented by advisory guidelines that give no role to the jury. And even with a ban on mandates under the Commerce Clause, Congress could achieve the same effect through the tax power.
And in both cases, a majority of the Court accepts the limiting principle, only for one Justice to back away from its seemingly natural consequences by pragmatically imputing to Congress a will to do what it no doubt could have done, in the face of considerable doubt that it actually did.
In a similar vein, public defender David Hemmingway sent me an e-mail to report his "whimsical notion" that the Booker remedy played a role in the ACA litigation outcome, which includes these observation:
This morning as SCOTUSblog was reporting that the individual mandate survived at the very same time that CNN & Fox loudly proclaimed that the Court had struck it down, [a lawyer in] our office recalled that overcast January day in 2005 when the Court issued Booker: everyone was reading it and scratching their head. In the ensuing seven years, CJ Roberts along with Justices Sotomayor and finally Justice Kagan have embraced it (as confirmed by last week's decision in Southern Union that the Apprendi right to jury fact finding also applies to criminal fines).
So maybe seven years of life with the Booker remedy -- which still stands in tension with both the Sixth Amendment violation that prompted it and the Congressional intent to reduce judicial discretion under the Sentencing Reform Act -- helped make it possible or easier for Roberts to join two conflicting majorities and uphold the ACA. At this time, on this planet, there are times when the best one can hope for requires that we live in a contradiction.
June 28, 2012 in Booker and Fanfan Commentary, Who Sentences? | Permalink | Comments (8) | TrackBack


text:
Have you ever lost someone you love? Have you ever felt like loosing that loved one was so hard you would never get over it and you just spent the rest of your days mopping, mourning that said loved one feeling like no one in the world understands you. No one understands what you are going through the kind of pain your feeling for the loss of someone you care for with all your heart and soul. No one understands this better than young Tyler Hawkins who is going through a long-term bout of depression after the loss of a loved one he mopes and sulks around New York like no one in the world care about him. Harboring a deep hatred for his cold and workaholic father who he blames for all the troubles in his life Tyler is about to have his life altered not by self reflection and self discovery but by the one thing he never thought would happen to him, love he finds love with a young girl who is living with he same pain as he is with the same bottled up anger and sadness he is going through and together learn to overcome there grief and find happiness and solace in each other and slowly learn to move on from there personal woes. Allen Coulter's "Remember Me" is a dark and searing look into the lives of two families as they deal with the loss of loved ones and a look into the lives of two young people who find love amidst each others pain and sorrows.
When I heard that Robert Pattinson (one of my least favorite actors) was going to loss the fangs and the pale skin to play a regular human being in a movie that has actually moral meaning and a story not half-baked and dull to unlawful extremes I nearly fell out of my chair it was just too unbelievable, too unfathomable for me too comprehend Robert Pattinson is not the type you would exactly associate with a movie with this kind of deep subject matter the films story revolves around death, loss, suffering and violence all of which are very heavy themes and echo sadly throughout the film. I had no interest in seeing this even if it did have some of my favorite actors in it namely Chris Cooper and Pierce Brosnan (both of which are phenomenal in this film) it had almost been two maybe three months into this film release that I started to become interested in it. Especially after a news article surfaced about the film talking about the films twist ending my interest in this film soared. You see controversy surrounding a film always for some reason or another intrigues me. Allen Coulter's "Remember Me" is not your typical romantic drama it does not have a straight forward story like most as in most romantic dramas you are able to tell how it is going to end. Which takes the fun out of watching the film however, that is not the case with "Remember Me" you don't know how it will end you don't know what will happen to the two young lovers will they live or will they die? Will someone else die in there place? You keep asking yourself theses questions in the hopes that you may be able to discern how this film will end and when the end comes, you end up with your jaw going through the floor. The ending is the most shocking part of this film and possibly the most heartbreaking thing about this film it just leaves you so distraught and in a complete state of sadness; you do not know what to think about this film it just leaves you in a complete state of shock. This is the kind of film that most will enjoy some will find it either overly offensive or extremely sad how you choose to view it is your own opinion. "Remember Me" is a well-made movie with deep meaning, real emotions not cheap Hollywood emotions, but real true human feelings. I felt for the characters I felt like I got o know them as the film moved along I felt like they were people I had know for not too long, long enough for me to be able to care for them and feel there pain. This film does not cheat you it may at sometimes feel that way nevertheless, it delivers what promises or so it seems.
"Remember Me" is a very touching and at sometimes very heartbreaking look into the subject of life, death, love, betrayal and hardship. It is not a cheap movie it does not pretend to be something that it's not it does not try to sugar coat real life to make it look easy simple and death free as most romantic dramas do. They usually portray the difficulties of the two lovers never the people around them. Some romantic drams are based just around two people and the rest of the people in there lives there mothers, fathers, brothers, sisters, uncles aunts etc. are just side characters or dead to add a certain flare to the film to keep the drama flowing strong. Most of the time it works and other times it just feels stale and just thrown in there for good dramatic effect. That however, is not the case with "Remember Me" it is a real film not a slick exploitation of one it does not sugar coat life or use it as a gimmick for the romance it fleshes out the deepest and darkest parts of life, it puts them to use like more films of this caliber should. "Remember Me" is a truly enjoyable film that that brings to life the dark side of life and the joys of romance this is the rare film that works on all levels.
I really do not care much for Robert Pattinson he is one of the most over hyped actors of this generation thanks to no less than the Twilight films from which he skyrocketed to fame faster than Tom Cruise. Which I thought was impossible until I saw the amount of crazed fans screaming his name and the amount of fan sites he even has a documentary about his popularity it is unbelievable. I never thought that Pattinson would go anywhere beyond the twilight films I figured he would be like the kids from Harry Pothead oh, sorry I meant Harry Potter. However, Pattinson has not found much success outside of the "Twilight" series until now. Pattinson performance in "Remember Me" is not half-baked or lagging although in some scenes, he tends to drop off into the whole Edward Cullen hoarse whisperer thing in some scenes. His performance is very subdued yet intense, succeeds in fulfilling his duty to this films deep story, and comes out on the other side as a very competent and convincing dramatic actor. I liked Pattinson in the role I felt for his character I sympathized with his character and in a film that is one of the major parts in filmmaking if you do not care about the characters or if in some cases despises them then the film, itself has failed miserable here all the characters have hearts and souls. They cry they feel and most if not all of them are in pain Pattinson has the task of carrying the most baggage and he effectively gives a performance that is worthy of being called good. The rest of the cast including Emilie De Ravin, Lena Olin, Tate Ellington, Gregory Jbara, Ruby Jerins, and Pierce Brosnan with Chris Cooper all deliver fine supporting performance in this heartbreaking drama that proves to be much more than you could ever expect.
Many may call this film overwrought, overly offensive, half baked and dull, I call it a fine piece of filmmaking its a movie that no matter how you view it still manages to entertain in some way. "Remember Me" is not a perfect movie it ha sits flaws and parts where it lags a little and the drama shifts to over the top melodrama but the movie never strays from its dark and lurid tone of loss and despair. What I admire most about this film is what I think most will as well it is a very touching romantic drama as well as a look into the trials and tribulations of one man trying to find his place in this sometimes bleak and lonely world. In addition, ends up finding it in the loving arms of a young woman who is just as emotionally scarred as he is. For what it is it is this film is very well done and well played out it leaves you thinking of how short life can be sometimes of how in the blink of an eye you can lose someone so dear and in some rare instances find someone new to love.
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subset: commoncrawl


text:
Eat Bulaga exec denies Wally was fired
MANILA, Philippines—An official of Eat Bulaga denied Thursday that Wally Bayola has been fired amid a sex scandal allegedly involving the comedian and a sexy dancer of the popular noontime TV show.
"Not true," Malou Fagar, executive producer of Eat Bulaga, told the Philippine Daily Inquirer.
A 6:14-minute video makes the rounds on the web showing a couple, who look like Wally and Eat Bulaga in-house dancer EB Babe Yosh, engaged in a steamy sex.
Wally,41, is a host on Eat Bulaga, aired Monday through Saturday on GMA-7 television. He is also a co-host on television game show Celebrity Bluff.
Fagar also dismissed Twitter user @manalo_jose as a poser of comedian Jose Manalo.
@manalo_jose was thanking the fans of Wally for their continued support and went on to say that "those who have their own opinion, we will also respect their opinion."
A report Tuesday on GMA-7's "24 Oras", quoting Fagar, said Wally would not be appearing on Eat Bulaga. Bayani San Diego, Inquirer Entertainment
Wally, EB Babe dancer embroiled in sex video scandal
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text:
Mystery surrounds murder at house near VP Biden's DC home
A family was held hostage, then found dead inside their burning home.
A family was held hostage, then found dead inside their burning home.
The House has approved a bill that would give Kansas' secretary of state the power to prosecute election fraud.
Gawker sues FBI to obtain records on Hulk Hogan sex video
Some immediate B.B. King family members will have a chance to visit his body at a Las Vegas funeral home ahead of a Friday viewing.
Bone Thugs-n-Harmony rapper helps driver in diabetic shock.
The class-action lawsuit covers former Boeing workers who were participants in the company's retirement plan in June 2005.
From food to gas, everything is on the table at the moment.
A weekend hit and run accident has left a Liberal City Commissioner cited.
The Blue Angels performed on Wednesday as part of the academy's class of 2015 graduation events.
Wichita police are searching for the teens responsible for robbing some men at a city-owned rec center Tuesday night.
Lawmakers are asking you to pay up. Sales tax, gas tax, fewer tax deductions. It may happen Thursday.
Ellis County officials have a tough job ahead of them, cutting $ 2 million from next years budget.
Investigators say it will take a while to examine train data files and the engineer's cell phone records.
The bomb disposal unit from Fort Riley was contacted to dispose of the shell.
The agreement is the result of a multi-state investigation into the companies.


text:
I'm surprised there's no comments on it yet
So this is a 15yr old girl who was holding hands with her 30yr old maths teacher on school trips, everyone knew they were having some kind of relationship but the school did nothing
finally he runs away with her to France
They've now been found, he's been arrested and she's returned to England.
I'm amazed how many people seem to think its ok and teachers especially. I've even heard of english teachers telling their classes its like romeo and juliet and very romantic.
is it just me or is being a parent hard enough these days without not being able to trust the people supposed to be looking after children during the day?
I hope they make an example of him but what about the girl? Shouldnt she have known right from wrong at 15?? or was she so blinded by the relationship?


text:
A Year Past Texas Filibuster, Backer Momentum Ebbs
One year after a filibuster attracted national attention and gave them a rare but brief Texas victory, abortion-rights supporters have struggled to recapture momentum in a conservative state where political battles usually don't go their way.
Dallas Abortion Doctors' Admitting Rights Reinstated
A judge has temporarily reinstated admitting privileges to two abortion providers at a Dallas hospital that had stripped the doctors of those rights.
Abortion Doctors Sue To Recover Admitting Rights
Two doctors who perform abortions have sued a Dallas hospital alleging that their admitting privileges were illegally revoked after a court upheld strict new Texas abortion restrictions.
Abortion Protestors Target High School Students With Graphic Images
In front of Eastern Hills High School in Fort Worth, as students head inside, a group of activists stand just steps away trying to teach and preach their message.
2nd Suit Filed Challenging Texas' New Abortion Law
An advocacy group filed another federal lawsuit Wednesday challenging a new provision in Texas' tough restrictions on abortion, less than a week after a federal appeals court reversed a previous suit and found that the stricter limits don't impose an undue burden on women's health.
US Appeals Court Upholds New Texas Abortion Rules
A federal appeals court has upheld new abortion restrictions that shuttered many of the abortions clinics in Texas.
Planned Parenthood Eyes Texas Political Race
The advocacy arm of Planned Parenthood launched a new political action fund Thursday to influence this year's election in Texas, hoping to build on its success shaping the Virginia governor's race.
Anti-Abortion Voters Seek One Of Their Own
Invoking references to Satan to criticize their opponents, anti-abortion lawmakers on Wednesday on insisted that Republican contenders keep a focus on social issues.
Two More Texas Clinics Closing Amid New Abortion Law
Two more Texas abortions clinics are closing because of new restrictions placed on the facilities by the Republican-controlled Legislature.
Federal Appeals Court Hears Arguments Over Texas Abortion Law
A federal appeals court heard arguments Monday on whether the state of Texas can enforce a law that led to the closing of several abortion clinics, a case that ultimately appears bound for the U.S. Supreme Court.
Federal Court Reviews Texas Abortion Law
A three-judge panel with a federal appeals court in New Orleans is set to review a Texas law on Monday that led to the closing of many abortion clinics in the state.
Dallas Abortion Clinic Receives Doctor's Privileges
Court documents show that doctors at the Abortion Advantage clinic in Dallas recently have received hospital admitting privileges allowing them to continue providing abortions.


text:
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[February 04, 2013]
Study: CMP's smart-meter emissions well below federal safety level
Feb 04, 2013 (Portland Press Herald - McClatchy-Tribune Information Services via COMTEX) -- An independent study of radio-frequency emissions from Central Maine Power Co.'s new smart meters has found maximum power levels that are well below what the Federal Communications Commission considers safe.
Story continues below ↓
The study, reviewed Monday by the Portland Press Herald, concluded that the exposure level averaged over time is 4.6 percent of the FCC limit. The agency regulates equipment that broadcasts radio-frequency signals.
The report was done by True North Associates and C2 Systems and overseen by Maine's Office of Public Advocate.
The results, however, provide little comfort to people who complain that the meters are hurting their health, causing symptoms that include headaches and fatigue. They say the findings were expected, and are meaningless.
"The question is, are there biological effects at levels lower than the FCC guidelines " said Ed Friedman, the Bowdoinham man who led a court suit last year on behalf of smart-meter opponents. "Our evidence submitted proves that beyond a shadow of a doubt." Friedman said the testimony he has received from international experts will document health effects from smart meters. That evidence has been submitted to the Maine Public Utilities Commission for an ongoing case meant to resolve health and safety questions about the new meters.
But to CMP, the study confirms the utility's position that smart meters are safe and that opponents actually have a wider target that includes all wireless technology, incudling baby monitors and garage door openers.
"This is not a case about smart meters," said John Carroll, a CMP spokesman. "It's a case about people who think radio waves and radio technology are making them sick." The study is part of a case that's slowly progressing at the PUC. In 2010, regulators approved plans for CMP to switch out old-style electric meters for its 615,000 customers with digital smart meters.
The commission thought it had addressed health and safety questions at the time, when the issue was first raised. But last summer, the Maine Supreme Judicial Court sided with opponents of the new-technology meters, who argued that regulators ignored their legal mandate to ensure the delivery of "safe, reasonable and adequate" utility service.
Two weeks later, the commissioners voted to investigate the wireless devices.
CMP argued that the scope of the review should be narrow and focused on the legal requirement. But opponents succeeded in pushing for a fully litigated case, which involves reams of written and oral testimony from expert witnesses and aggrieved residents, rebuttals and discovery, hearings and, finally, deliberations.
Those hearings have been set for May, with deliberations later this year.
___ (c)2013 the Portland Press Herald (Portland, Maine) Visit the Portland Press Herald (Portland, Maine) at www.pressherald.com Distributed by MCT Information Services
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text:
The fast and furious lifestyles of rappers, DJs, producers, their teams, journalists, and others in the music industry don't leave a lot of time for focusing on good health. Lately, the pressures of the industry have been taking a toll on some of the top names in the game, and hopefully, scaring the rest of… Read more »
[ahh_audio src=/10-18-11/Wale-CosmicKevFreestyle.mp3]
[ahh_audio src=/10-18-11/ChipThaRipperftWale-25Wives.mp3]
[ahh_audio src=/10-14-11/WaleftKidCudi-Focused.mp3]
[ahh_audio src=/10-12-11/RickRossftWaleStalleyPillMeekMillBETCypher2011.mp3]
CHARTWATCH: J. Cole Hits #1 With RocNation Debut; Wayne Hangs Around Top 10; The Throne Go Platinum
In what is sure to be an unforgettable and cherished moment for the North Carolina native, RocNation rapper J. Cole moved over 200,000 copies of his debut album, Cole World: The Sideline Story (RocNation), in the week since its release. The official SoundScan numbers put the album at 217,324 albums sold. Coming hot off the… Read more »
AllHipHop.com caught up with The Bawse, @RickyRozay, on the BET Hip-Hop Awards Red Carpet. Ross spoke to us about his upcoming BET Hip-Hop Awards performance and the projects on MMG including Wale!


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Sandy Samson lives in the mountains of north-east Pennsylvania. Five dogs and a delightful wife brighten his life. Marauding deer, woodchucks, and the occasional black bear keep him from falling into the trap of excess happiness. When he's not writing computer programs to pay the bills, he writes fantasy, generally involving witches, wizards, demons, and sometimes an angel.


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Rifle ace Gagan Narang is hoping to be third time lucky and experience the "heroic" feeling of winning on the planet's biggest sporting event in the upcoming London Olympics after two unsuccessful attempts in Athens and Beijing.
Since missing out on the final by a point in the Beijing Games fours summers ago, Narang has gone on to win numerous medals in the ISSF World Cups, World Championship, Commonwealth Games and the Asiad, besides creating a new world record in 2008.
"I have been unlucky twice (Athens 2004 and Beijing 2008), hope I get third time lucky," Narang told PTI.
"An athlete's ultimate ambition is to win and I am determined to go all the way and do whatever it takes," the genial medal hopeful from Hyderabad adds.
Narang will be representing India along with Beijing Games gold-medallist Abhinav Bindra in their pet event – 10-metre air rifle on July 30.
Besides 10-metre, Narang is also competing in 50-m Rifle Prone (August 3) and 50-m Rifle 3 Position (August 6), giving himself enough chances of winning a medal at the Royal Artillery Barracks.
Going by his form over the past couple of years, Narang stands a realistic chance of standing on the podium in London, and the experience of having represented his country in two previous Olympics only adds to the hopes and expectations.
"Olympics is everyone's dream. We know what's coming. We have come a long way. All I can say after representing the country twice already is that I have better control keys," he says.
Keywords: London Olympics, Beijing Games, Royal Artillery Barracks


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From Wikipedia, the free encyclopedia
(Redirected from Prototi)
|This article does not cite any references or sources. (November 2009)
Bartatua or Partitava (old Iranian *Partatava, mentioned by Herodotus as Protothyes), was a Scythian king, who established friendly relations with Assyria. He married a daughter of Assyrian king Essarhaddon.
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The calendar turning to December means a whole new slate of exciting events on campus before the new year, especially holiday-themed festivities.
Take 5: Can't-miss campus events in October
Northeastern has several exciting and engaging events planned this month. Here are five, which range from campus art and Huskies hockey to Big Data research and Profiles in Innovation.
Huskies' goal is defense first
The No. 10 women's hockey team plans to put defense first this season, which opens at Matthews Arena on Friday night against Syracuse University.
Shooting for a title
The Northeastern women's hockey team opens up the regular season on Friday at Colgate.


text:
CLACKAMAS, Ore. -- A Milwaukie man believes a new smartphone app called Pulse Point saved his life when there were only minutes to spare.
May 9th seemed like a regular day for Drew Basse. The truck driver worked out at the 24-Hour Fitness on S.E. Sunnybrook Blvd. in Clackamas and then walked to his car.
Suddenly, he started feeling tired and light-headed. He doesn't even remember what happened next:He had a massive heart attack.
I was completely, completely gone, Basse said as he talked to reporters from his bed at a rehabilitation center days later.
Luckily, a security guard had been watching and called Clackamas County 911, who sent out a Pulse Point alert. Off duty firefighter Scott Brawner was exercising inside the very same 24-Hour Fitness and his phone started buzzing.
When the app went off, I'd never heard it before. It turned my radio off and gave me a series of beeps, Brawner said as he stood next to Basse's hospital bed.
He had downloaded the app and checked the box that said he was willing to step in during an emergency nearby to give CPR.
The app brought up a GPS map with real-time locations of both men and that's when Brawner saw the security guard kneeled down by Basse's car door. He rushed over, saw that Basse, just seconds before, had a heart attack and he started doing hard and fast, hands-only CPR within one minute of the Pulse Point alert.
Paramedics came and Basse was brought back. He had surgery to install a pacemaker on his heart and will be recovering for the next six weeks. Doctors said he has no cognitive damage.
Both men are giving Pulse Point a lot of credit. This Pulse Point app, it's just a must, Basse said. It needs to get out to everybody, wherever people have a computer. They should make it mandatory on your phone.
They also agree that it saved a life on May 9th.
In a matter of minutes, somebody is there to save your life. Basse said. That's what Scott did. He saved my life. I wouldn't be here right now if it wasn't for him.
I would love to see other people do the same thing, Brawner said. If you have the opportunity to do CPR, I mean just look at what we've given Drew back with everybody that's helped him.
Individual fire departments sign on to be a part of Pulse Point. It's a non-profit and fairly new, so Clark County, Clackamas, and Tualatin Valley Fire and Rescue are the only local departments that have launched it at this time.
The app is free for iPhone and Android devices.
More: Pulse Point smart phone app


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Who takes it?
Printable View
Who takes it?
woodley without a doubt, story is a shadow of his former self in my opinion.
T Wood no doubt. Story would not be able to get inside for the takedown. Rick's brawling style would get him clipped and shutdown.
Story has come out and expressed interest in this matchup as well. I hope he gets the fight.


text:
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