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July 14, 2004

The Challenges for SCOTUS

I argued below that the Supreme Court should take a Blakely case very soon in order to provide some additional guidance about what the Blakely decision means for federal sentencing. But, to really bring more order to our changed sentencing world, the next Blakely case would have to address an enormous number of complicated and important questions. For example:

1. Will Harris, which allows judges to find facts that aggravate minimum sentences, ultimately survive Blakely? (Recall that both Justices Scalia and Breyer are seemingly shaky votes in the (five vote) Harris majority.)

2. Will the Almendarez-Torres exception, which allows judges to find "prior conviction" facts that aggravate sentences, ultimately survive Blakely? (Recall that Justice Thomas is already on record saying he regrets his vote as part of the (five vote) Almendarez-Torres majority.)

3. Is Blakely retroactive, perhaps even before Apprendi was decided in 2000, or at least after Apprendi?

4. Does the Blakely rule apply in all sorts of other settings in state and federal systems when judges find facts that (functionally) aggravate punishment (e.g., ordering criminal forfeitures, revoking probation, administering drug courts)?

I doubt any single case raises all these questions (and I would be shocked if such a case comes before the High Court). But I know from my e-mail in-box that there are lots of courts, lawyers and academics who could add a dozen more consequential question to this list. We have now been litigating the meaning of Furman for more than 30 years and there are still open questions; the same will likely be true for Blakely. We may as well get the progeny started ASAP.

I encourage readers to use the comments to add other big questions needing big answers in the post-Blakely world.

July 14, 2004 at 03:51 PM | Permalink

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Comments

I'm very curious to hear what anyone has to say about Harris. I don’t think that Harris survives Blakely. Not only was Harris a shaky majority, but if you read Harris with what we've been told in Blakely I think that McMillan and Harris are in big trouble.

If you want to sentence Mr. Harris to 7 years for "brandishing" his weapon you need the jury to say he brandished it. Period. Or, maybe not.

Posted by: Jason Hernandez | Jul 14, 2004 4:38:54 PM

I'm very curious to hear what people have to say about Harris. I don’t think that Harris survives Blakely. Not only was Harris a shaky majority, but if you read Harris with what we've been told in Blakely I think that McMillan and Harris are in big trouble.

If you want to sentence Mr. Harris to 7 years for "brandishing" his weapon you need the jury to say he brandished it. Period. Or, maybe not. Thoughts?

Posted by: Jason Hernandez | Jul 14, 2004 4:39:38 PM

Regarding point 2, I offer a footnote from a Responsive Memorandum in Commonwealth of PA v. Belak, which is pending. Atty Bruce Antkowiak writes:
"Apprendi v. New Jersey...later suggested that Almendarez-Torres was, at best, quite limited or, at worst, wrongly decided. It is limited to the Harris notion that the fact of prior convictions can be used to enhance the sentence without a separate jury finding, since, after all, the prior convictions either resulted from a jury verdict or a waiver of same by the defendant."

So it seems that the fact of a prior conviction can be considered in sentencing for the current offense. However, making additional factual findings about prior convictions is beyond the mere fact that the defendant had one or more prior convictions.

Posted by: Jeannie | Jul 14, 2004 7:00:47 PM

In response to point 2, under the Guidelines, when a person commits a crime subsequent to being deported for a felony conviction, their base offense is usually increased via a "specific offense" characteristic. Such enhancements are exactly the kind of "facts" that Blakely says must be found by a jury.

Similarly, and buildinging upon previous comments, Blakely may effect the constitutionality of a defendant's criminal history score (depending upon how broad you interpret the caveat "other than prior conviction").

Under the Guidelines, two criminal history points are added for committing the instant offense "while under any criminal justice sentence including probation, parole, supervised release, imprisonment, work release, or escape stauts."

Also, two criminal history points are added for commiting the instant offense "less than two years after release from imprisonment..."

Under Blakely, these criminal history enhancements are by definition, findings "other than the fact of a prior conviction" that can increase a defendant's sentence.

As such, could the criminal history score be affected by Blakely?

Posted by: DJ | Jul 19, 2004 6:41:08 PM

RE: Harris

I think Harris will survive Blakely. Read part III of the court's opinion in Harris, which was written by Kennedy, and joined by Rehnquist, O'Connor, and Scalia. Harris was basically an indeterminate sentence in that the judge could impose the maximum sentence without any findings. The judge did, in fact, make findings to impose the mandatory minimum, but the judge did not have to make these findings to impose that sentence. The findings were not ESSENTIAL to the sentence imposed.

Posted by: A. SkinnerLopata | Aug 2, 2004 12:45:00 PM

Read part III of the court's opinion in Harris, which was written by Kennedy, and joined by Rehnquist, O'Connor, and Scalia.

Posted by: Robe de Soirée 2013 | Dec 12, 2012 10:27:41 PM

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