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June 29, 2004

Reports about Blakely from the field

I am pleased that various folks in various settings are starting to e-mail me with formal and informal reports about efforts and plans to deal with Blakely. Keep those cards and letter coming (and let me know if I am have your permission to post your reports). You can find here a post reporting the Blakely "word on the street" in one jurisdiction. In addition, I received an important and helpful e-mail from Jeffrey L. Fisher, the lawyer from Davis Wright Tremaine LLP, who won Blakely's case in the Supreme Court. Here's what he has to say:

One thing I think it's important for people to know is that, at least as far as the states are concerned, we're not in uncharted waters. Kansas has already been here, and it provides a useful source from both a legislative and a judicial point of view. Following the Kansas SCt's decision in State v. Gould, 23 P.3d 801 (Kan. 2001), holding that Apprendi applied to facts supporting upward departures under its state guidelines, the Kansas legislature amended the guidelines to comply with Apprendi. See Kan. Stat. Ann. 21-4716, 4718. (In fact, Justice Scalia cited this legislative response in the Blakely opinion.) These amendments may provide a helpful template for legislatures and commissions in guideline states; the word from Kansas is that they work just fine.
In addition, and perhaps even more helpful to lawyers out there, the Kansas courts following Gould have developed a rich body of law concerning how to deal with defendants who received upward departures before Gould came down. There are cases dealing with defendants who pleaded guilty without challenging the aggravator, e.g, State v. Pruitt, 60 P.3d 931 (Kan. 2003); defendants who stipulated to the aggravator, State v. Cody, 35 P.3d 800 (Kan. 2001); defendants who agreed to the upward departure, e.g. State v. Cullen, 60 P.3d 933 (Kan. 2003); State v. Johnson, 55 P.3d 927 (Kan. App. 2002), and many more permutations. There also are cases addressing how courts should proceed until there is a new legislative procedure for finding aggravating facts that complies with Apprendi. See, e.g., State v. Kessler, 73 P.3d 761, 771-72 (Kan. 2003); State v. Santos-Garza, 72 P.3d 560 (Kan. 2003).

June 29, 2004 at 09:49 PM | Permalink

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Comments

The Kansas judges, in the cases cited, appear to be smoking crack. Not even an admission, waiver, or stipulation by the defendant to a fact is enough for them! This does not fit with Blakely itself, which freely admitted that a defendant could waive or stipulate away the right to jury factfinding. I hope that other courts are not foolish enough to follow Kansas' extreme position.

One possible distinguishing factor: It appears in Kansas that the default sentence was a statutory middle-range sentence, so Kansas courts (in Gould) read Apprendi as invalidating the departure mechanism. But in federal cases the statutory range is broad, and the Guidelines merely narrow a sub-range within the range. The logical effect of Blakely would either be to wipe out the Guidelines entirely, freeing judges to sentence anywhere within the broad statutory range, or else to make the presumptive sentence the base Guidelines sentence before applying any adjustments. In other words, the Kansas scheme was set up differently from the federal one.

Posted by: Stephanos Bibas | Jun 30, 2004 10:58:43 AM

These amendments may provide a helpful template for
legislatures and commissions in guideline states;
the word from Kansas is that they work just fine.

Posted by: About Health Blog | Mar 30, 2011 3:09:54 AM

Not even an admission, waiver, or stipulation by the defendant to a fact is enough for them!

Posted by: Robe de Cocktail Pas Cher | Dec 12, 2012 1:59:31 AM

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