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July 13, 2004

Can the Kansas system work for the feds?

Because it's late, readers will have to make up their own Wizard of Oz jokes as we consider the virtues of following the yellow brick road of sentencing reform to Kansas. The New York Times today has an article suggesting "Justices' Sentencing Ruling May Have Model in Kansas." In a similar vein, The National Association of Criminal Defense Lawyers' (NACDL) has sent a letter to Senators Hatch and Leahy (available here thanks to our friends at TalkLeft), in which it is suggested that the Kansas approach of having a bifurcated trial to allow jury consideration of sentencing enhancements is the best way to give meaning to the constitutional rights announced in Blakely. I'll be interested to hear if the Kansas approach gets discussed at any length during the Senate Judiciary Committee hearing later today.

July 13, 2004 at 02:59 AM | Permalink

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Comments

I'm an attorney now, but before law school I worked at a firm in Virginia that did a lot of criminal defense (state and federal). It seemed to me that, in comparison to the federal "guidelines" system, Virginia's guidelines system made more sense, and I have wondered why I've seen no discussion of this as a model for reform in the wake of Apprendi/Blakely.
The Virginia system is a voluntary system. The guidelines are developed based on an analysis of past sentences with similar characteristics, so they are not a policy or legislative statement and thus cannot be characterized as an element of the offense. And judges need not invoke magic words in order to depart, nor are departures appealable (though judges are supposed to provide written explanations of departures, so that the commission can determine whether the guidelines need to be revised).
Even though it is voluntary, Virginia judges sentence within the guidelines 75-80% of the time, and depart above the guidelines equally as often as below the guidelines. I think judges like knowing what the average historical sentence is so they can have a true guideline as to what a reasonable sentence is, without their discretion to go above or below being infringed in those cases that warrant a departure. (Also, statistics on rates of departure for individual judges are published so perhaps there's a public shaming element to it.)
Notably, Virginia's system will never suffer Apprendi problems because whenever a defendant is tried by jury, the jury also renders a sentence immediately thereafter, and without relying on guidelines. The sentence is technically advisory but judges rarely depart from a jury recommendation. This might be an additional reform to add to the federal system, but I think the voluntary, historically-based guidelines system alone may avoid the Apprendi-related problems presented by the federal system, and would restore judicial discretion to the sentencing process in a way that avoids the disparities the guidelines concept was aiming at eliminating and retains the predictability of the guidelines system.
Does anyone think this would not solve the problems? (I.e. that even a voluntary system is suspect?)

Posted by: SMS | Jul 14, 2004 11:16:51 AM

Virginia's system will never suffer Apprendi problems because whenever a defendant is tried by jury, the jury also renders a sentence immediately thereafter, and without relying on guidelines.

Posted by: Robe de Cocktail Pas Cher | Dec 12, 2012 3:14:38 AM

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