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August 18, 2004

Teaching Blakely

I am busy preparing for the first session of my Criminal Punishment & Sentencing class here at Ohio State this afternoon — yeah, I cannot believe we start so early, either — and I am working through how to handle Blakely.

Fortunately, the casebook I helped co-author, Sentencing Law and Policy: Cases, Statutes and Guidelines, which was published by Aspen Publishers earlier this year, does not focus exclusively or even excessively on structured sentencing reforms. Consequently, I am fairly confident that Blakely will not require me to radically alter the way I teach this course. (Indeed, right now only perhaps parts of two chapters need to be significantly tweaked because of Blakely.)

But, obviously, the world of criminal punishment and sentencing is much different today than it was two months ago, and thus I feel I am about to embark on a 14-week Blakely-impacted teaching experiment. Moreover, these realities have me wondering how others gearing up for fall classes are working through these issues. Of course, any and every sentencing course must figure out what to do with Blakely, but what about more general courses on criminal law and criminal procedure?

I am eager to hear from colleagues (ideally in the comments) about Blakely teaching plans.

August 18, 2004 at 02:18 PM | Permalink

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Comments

Crime and Punishment:
The real world actual probation officers, prosecuting attorneys, defense attorneys and judges often forget the key concept that I think Blakely is reminding all of us about...let's return to making punishment fit the actual crime. Excessive sentences, sentences that do not take into account individual elements unique to the particular defendant and the specific crime, breed bitterness which I firmly believe (based on my experience) is the route of recidivism.

Most people (escalated by the media) often do not understand how our Constitution is neglected due to fear! Thank God Blakley reminded us to pay attention to it!

I have seen judges compelled to lower sentences consistently, and often times substantially, in an effort to make punishment fit the crime. The key is to know sentencing law for the circuit you are in and then use a legitimate and common sense approach to developing and recommending reasonable sentences with or without Blakely.

Be diligent in your study - students have a difficult time discerning this issue for themselves. This topic has huge ramifications on all those who practise in our criminal justice comunity.

Posted by: Joy | Aug 18, 2004 5:45:24 PM

Crime and Punishment:
The real world actual probation officers, prosecuting attorneys, defense attorneys and judges often forget the key concept that I think Blakely is reminding all of us about...let's return to making punishment fit the actual crime. Excessive sentences, sentences that do not take into account individual elements unique to the particular defendant and the specific crime, breed bitterness which I firmly believe (based on my experience) is the route of recidivism.

Most people (escalated by the media) often do not understand how our Constitution is neglected due to fear! Thank God Blakley reminded us to pay attention to it!

I have seen judges compelled to lower sentences consistently, and often times substantially, in an effort to make punishment fit the crime. The key is to know sentencing law for the circuit you are in and then use a legitimate and common sense approach to developing and recommending reasonable sentences with or without Blakely.

Be diligent in your study - students have a difficult time discerning this issue for themselves. This topic has huge ramifications on all those who practise in our criminal justice comunity.

Posted by: Joy | Aug 18, 2004 5:45:46 PM

Crime and Punishment:
The real world actual probation officers, prosecuting attorneys, defense attorneys and judges often forget the key concept that I think Blakely is reminding all of us about...let's return to making punishment fit the actual crime. Excessive sentences, sentences that do not take into account individual elements unique to the particular defendant and the specific crime, breed bitterness which I firmly believe (based on my experience) is the route of recidivism.

Most people (escalated by the media) often do not understand how our Constitution is neglected due to fear! Thank God Blakley reminded us to pay attention to it!

I have seen judges compelled to lower sentences consistently, and often times substantially, in an effort to make punishment fit the crime. The key is to know sentencing law for the circuit you are in and then use a legitimate and common sense approach to developing and recommending reasonable sentences with or without Blakely.

Be diligent in your study - students have a difficult time discerning this issue for themselves. This topic has huge ramifications on all those who practise in our criminal justice comunity.

Posted by: Joy | Aug 18, 2004 5:45:55 PM

Hi Doug - love your blog and have been reading it on and off since Blakely came down. I am an immigration defense attorney and former DOJ administrative judge on the Board of Immigration Appeals (BIA) (1995-2002) (reviewed about 18,000 immigration judge decisions and wrote over 500 dissenting opinions).

Since leaving the BIA (I had a different perspective on things than the present AG, at whose "pleasure" I served), I have been directing a program called Defending Immigrants Partnership, based at the Natl Legal Aid & Defender Association, to train and mentor criminal defense counsel on the immigration consequences of convictions. Also, as an adjunct law professor at Washington College of Law at American University in D.C., one of the courses I teach is "Crime and Punishment in Immigration Law." (We're starting up next week).

Of course, immigration law is "civil" and deportation (even if it means leaving your family and never being able to return to the U.S.) is not "punishment," so the cases say. However, many are realizing that these labels are becoming more questionable as detentions and sanctions increase, immigration law definitions are used by the USSG, and local police execute contracts deputizing them to enforce immigration laws -- a subject which I am studying and on which I hope to soon write.

In any event, I find it curious that virtually no one in the defense community - as far as I can tell - has raised the question of how Blakely affects convicted noncitizens in the immigration context. Sentencing has a signficant, often determinative effect on immigration status -- in fact, I believe that any criminal law or criminal sentencing course should include at least a section or two on the impact of sentences for those defendants subject to immigration laws. Preferably, in consideration of the fact that there are many defendants who are noncitizens, immigration consequences - in terms of both substantive offenses and sentences triggering consequences-- should be woven throughout a course. [Note: collateral or not -- in 2001, the Supreme Court in INS v. St. Cyr commented that "competent defense counsel" would be presumed to have consulted immigration manuals and properly advised his/her client on the consequences of pleading guilty in relation to available deportation waivers].


The Immigration and Nationality Act ("INA," 8 U.S.C.) contains language like "punishment that 'could be' imposed" and "punishable by" in several of its provisions. Also, as defined in the INA, sentences to imprisonment that are imposed but suspended count as sentences. Furthermore, the federal misdemeanor-felony distinction related to sentencing does not necessarily control in all immigration matters. In relation to Blakely, the difference between a conviction for an offense for which the offender "could be sentenced to one year or more," and one that is punishable by less than one year is the difference, in certain cases, between a defendant being subject to removal for having been convicted of a "crime involving moral turpitude"(CIMT), and possibly not being subject to removal at all. So, in some cases, even a suspended sentence of one year is a CIMT, which is a deportable offense that subjects the offender to removal. After Blakely, the maximum sentence that "could be" imposed -- be it according to the state or federal statute or guidelines -- is a factor that all defense counsel should take into account in advising defendants of their exposure to immigration consequences. These rules vary according to other factors in the statutory language, and the INA does not contain too many of this "punishable by" or "could be sentenced to," but they are certainly critical factors that must eb taken into account. It is certainly critical to be conversant with these factors and concepts and how Blakely may affect them when developing an alternate plea meant to avoid immigration consequences.

The dilemma I face is slightly different from that faced by criminal law professors. For our purposes, in those provisions using "could be unished," language the maximum sentence in the statute is what we always have used to judge whether a conviction comes under the INA. We certainly will discuss Blakely, but I haven't yet decided what reading should accompany the discussion. Since my students are here in D.C. I may encourage them to attend the argument. Depending on the outcome there may be a new interpretation that has to attached to the language in the INA. There is also the potential retroactive application question under Teague v. Lane, I guess -- or even an issue relating to the present application for those convicted and then found deportable between Blakely's issuance and the date of any clarification.

I'd be interested in your comments, both on the Blakely implications and the broader question of incorporating immigration law consequences into traditional criminal law and sentencing study.
Thanks.

Posted by: Lory Rosenberg | Aug 19, 2004 11:49:57 AM

Lory,

I just saw your post and wanted to thank you for your dissenting vote about the scope of St. Cyr in In re Ponnapula, a BIA case in which I represented Ponnapula, which recently ended up in the Third Circuit after years of litigation. Your vote was eventually vindicated when the Third Circuit split with every other circuit and held (four days after Blakely) that St. Cyr applies to aliens who had been convicted after trial, not just those who had pleaded guilty. See Ponnapula v. Ashcroft, 373 F.3d 480 (3d Cir. 2004). I'm sorry you are no longer on the BIA. We could use more voices of reason there.

The government is thinking of asking the Third Circuit to rehear Ponnapula en banc and may eventually seek cert in the Supreme Court. Maybe Blakely portends a more immigration friendly environment there if that's where the case ends up.

Alex Eisemann

Posted by: Alex E. | Aug 22, 2004 10:24:43 AM

I am a private practitioner in NYC, doing both immigration and federal criminal. An IJ in New York, Alan Vomacka, in a Feb., 2004 decision, granted 212(c) to my client despite a second crime, not charged in the NTA but emerging in the testimony, in which my client chose to go to trial. The Service is appealing using St. Cyr and Rankine. I'm starting on my reply brief, and have recently discovered Ponnapula, from which I will extract as much as I can, considering it is out of the 2nd Circuit.


Posted by: Jack Sachs | Sep 12, 2004 8:37:31 PM

Just received the decision for the Board of Immigration Appeals on the matter posted above. The BIA, citing only statutes, denied the appeal. I am preparing a habeas petition now.

Posted by: Jack Sachs | May 8, 2005 3:44:17 AM

Just received the decision for the Board of Immigration Appeals on the matter posted above. The BIA, citing only statutes, refused to consider Ponnapula and denied the appeal. I am preparing a habeas petition now.

Posted by: Jack Sachs | May 8, 2005 3:45:10 AM

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