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October 13, 2004

Conceptualizing Blakely

As noted before here, I have been starting to conceptualize Blakely in terms of an offense/offender distinction, and thus I was pleased to see that a New Jersey appellate court in NJ v. Abdullah, 2004 WL 2281236 (N.J. Super. A.D. Oct. 12, 2004), relied on an offense/offender distinction when applying Blakely (details here). The Abdullah court's discussion of this distinction is a bit truncated, and I have now had a chance to write up my views more formally. Here is the first part of an article, entitled "Conceptualizing Blakely," that I am working on for the next issue of the Federal Sentencing Reporter:

The Blakely rule, its underlying principle, and its key limit could be better understood and appreciated if the Supreme Court linked its rulings to the constitutional text it purports to be applying. Notably, the jury right at issue in the Blakely line of cases actually appears twice in the U.S. Constitution. Section 2 of Article III provides: “The trial of all crimes, except in cases of impeachment, shall be by jury.” And the Sixth Amendment, in pertinent part, provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” In addition to highlighting the favored status of the jury trial right, the language of these provisions helps to chart the proper metes and bounds of the right itself.

The Constitution frames the jury trial right in terms of the trial of “crimes,” which are the basis for a “prosecution” of “the accused.” This language connotes that the jury trial right attaches to all offense conduct for which the state seeks to impose criminal punishment, but also connotes that the jury trial right does not attach to any offender characteristics which the state may deem relevant to criminal punishment. That is, all facts relating to offense conduct which the law expressly makes the basis for criminal punishment are subject to the jury trial right; such facts are in effect fundamental parts of those “crimes” which the state wishes to be able to allege against “the accused” in a “criminal prosecution.” Put simply, the state accuses and prosecutes persons for what they do, not for who they are; consequently the jury trial right concerns offense conduct while having no application to offender characteristics.

Stated another way, the jury trial right ensures that a defendant can always demand that a jury determine whether the defendant in fact did whatever offense conduct the state seeks to punish. But once offense conduct has been properly established — either through a jury trial or a defendant’s admission — a judge may properly consider whether and to what extent offender characteristics may justify more or less punishment in response to the properly established offense conduct. And, critically, a state may structure through statutes or guidelines how a judge considers offender characteristics without implicating the jury right.

In short, there is an essential offense/offender distinction at the heart of the jury trial right. In addition to being faithful to the text of the Constitution, the offense/offender distinction resonates with the distinctive institutional competencies of juries and judges in the context of sentencing determinations. Juries can reasonably be expected to determine offense conduct at trial; the state should have to prove to a jury beyond a reasonable doubt exactly what “the accused” did. But judges are generally better positioned to consider offender characteristics at sentencing; the state should be allowed to offer (potentially prejudicial) information concerning an offender’s life and circumstances directly to a judge to assist in determining an appropriate punishment. (Of course, the state is certainly permitted to provide for jury consideration of offender characteristics, but the Constitution does not demand as much.)


Thoughts, anyone?

October 13, 2004 at 07:42 AM | Permalink

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Comments

I think you are really on to something here. The difficulty in the past is that offender characteristics other than criminal history and acceptance of responsibility have not been considered relevant in the federal sentencing guidelines, unless one considers things like role in the offense to be an offender characteristic. It may be that drafters of guidelines feel they can write down offense characteristics better than they can draft offender characteristics. Given the rich texture of human existance, how much confidence do you have that we can write down relevant offender characteristics in advance with sufficient clarity that judges could be expected to apply them without undue disparity? In other words, if one agrees that the jury trial right does not apply to offender characteristics, what are the implications of that for the future of guidelines sententencing?

Posted by: jim felman | Oct 13, 2004 10:14:52 AM

Not to be too much of a "Yes Man," but I think your offense/offender distinction is a big step forward in sentencing theory. The "offense" prong is closely related to the constitutional text (and, from what I know, the "framers' intent," too), while the "offender" prong allows us to progress to the next level of sentencing (rather than have to choose from the all discretion/no discretion dichotomy that so many other commentators seem to focus on).

Another benefit of the system is that it would be more difficult for legislatures to circumvent than the element/sentencing factor distinction. With the element/sentencing factor model, a legislature can (1) simply raise maxima extremely high (the Bowman proposal) (2) raise maxima extremely high and then include only mitigating enhancements, (3) otherwise change statutory language to modify what could conceivably constitute an element. (Courts and commentators have been somewhat suspect of these actions, but some modification could sneak through.) In the offense/offender model, however, I think it would be easier for a court to analyze a particular act or event is "whatever offense conduct that the state seeks to punish." I could see a test including factors like (1) whether the factor is "conduct" versus a "status" (unless status is a required element of the crime), (2) whether the factor is temporally, causally, or topically related to the "core" of the crime charged, (3) whether the factor is a necessary condition of conviction, and (4) whether the factor increases the seriousness, dangerousness, or reprehensibility of the action taken, rather than increasing the public's outrage at (or leniency to) the actor herself. The point is your test would be easier for a court to define and harder for a legislature to circumvent.

My questions: From my (limited) understanding of the nature of trials around the time of the framing, there was no "offender" consideration in sentencing. Guilty of felony = off with your head; but if the jury had sympathy for you, then perhaps they'd sentence you to a lesser offense. (Feel free to correct me if this is an incorrect summary of the state of affairs at that time.) So, what exactly is the source of your argument to appease the textualists and originalists? Is it that because "offender" characteristics weren't considered at the time of the framing, then the Constitution does not include jury trial protections for them? Or is there some other positive reason that "offender" characteristics do not receive constitutional protection?

Second, how does this theory gel with Ring / death penalty aggravating and mitigating factors? Just off the top of my head, I believe that at least some of the standard aggravating and mitigating factors would fall into the "offender" characteristic side, yet Ring requires that those factors be proved to a jury. Are they exceptions because those factors are statutorily dileaneated, and therefore become more like "offense" characteristics (necessary conditions of execution)?

Posted by: District Clerk Battling Blakely | Oct 13, 2004 10:16:27 AM

Some quick thoughts with regard to criminal history as an offender characteristic (which you may address more fully in your article):

1) The offense/offender distinction, to the extent that it relies on "crimes" language in III,2 and Amd. VI, seems to beg the question. To paraphrase Justice Scalia, whether you call it a "crime" or "Mary Jane" is of no moment. The crucial test, for Sixth Amendment purposes, is whether a particular fact increases the legally authorized punishment. But for Almendarez-Torres, it shouldn't make any difference whether that fact relates to the offender or the offense. While there may be a textual basis for an offender/offense distinction, it seems that Apprendi and Blakely have effectively interpreted "crime" so broadly as to elimiate that distinction. Conceptually, I have a hard time distinguishing offense/offender from element/sentencing factor.

2) According to the Court, enhancements based on recidivism don't violate the Double Jeopardy clause because a defendant is not being punished again for the prior offense(s), but instead for the manner in which he has committed the instant offense. See Monge v. California, 118 S. Ct. 2246, 2250 (1998). I consider that a ridiculous fiction, given that there are specific sentencing consequences under the USSG for prior offenses. Nevertheless, if that theory still holds then the offender characteristic of criminal history is actually an offense characteristic. But does that "manner of committing the offense" theory still hold water after Apprendi's refutation of Almendarez-Torres (even though Apprendi didn't actually overrule Almendarez-Torres)? If so, does the theory apply to other offender factors, as well?

3) Finally, with regard to illegal reentry under 8 U.S.C. 1326 (and USSG 2L1.2), it's hard to consider criminal history as anything but an offense characteristic, notwithstanding what Almendarez-Torres held. Can you really have an offender characteristic that raises the maximum penalty from 2 years to 10 or 20?

Posted by: Brad | Oct 13, 2004 10:51:08 AM

At first glance, I like the rubric you propose, as it ties together the common law, commonly understood notion of elements with the historic role of the jury, i.e. determining the facts that establish guilt. But will it solve the problems presented by the Guidelines and close the loopholes that Blakely may allow? For example, the Guidelines were praised initially for allegedly narrowing disparate sentencing by associating a limited range of punishment for a given criminal act. But the Guidelines' rigidity on range gave way to abusive fluidity in defining criminal history (which did not punish recidivists equally but rather punished certain past crimes more than others, and allowed the government to bootstrap conduct not actually a convicted offense) and at the same time put far too much power in the hands of prosecutors in choosing the offense and how much criminal history they would or would not prove at sentencing. The Blakely loophole could be the ability of legislatures to define criminal behavior in such broad terms with overly broad ranges of punishment as to circumvent the constitutional distinctions of elements and sentencing factors (say create a single crime of assault as "intentionally causing physical harm" with a punishment range of one year to life, eliminating all degrees of assault -- the state puts on aggravating factors, the defendant mitigating factors and the judge chooses a penalty -- back to indeterminate sentencing without the protection Blakely states is a constitutional guarantee). So if your offense/offender distinction is to carry real power (and it should), it would require a reading of Blakely and the jury trial right itself to prevent the legislature from essentially an intentional or unintentional lack of precision in drafting that could leave the prosecutor and the judge as the ultimate arbiters of the criminal definition. Hence, Blakely must be read to overrule McMillan and its progeny that allow sentencing factors to withstand constitutional scrutiny. Consequently, even if legislatures do not use precision in drafting a criminal code, the Sixth Amendment will force the issue by nullifying any sentencing proceeding that would allow findings that distinguish a crime by degrees (which is consistent with your offense/offender distinction, but not yet clear from the Supreme Court's jurisprudence). Now, let's assume all of these hurdles are cleared by the Court. We will have a dramatically improved sentencing process, but one still rather defective in one respect -- disparate treatment. A judge could still punish an individual for being a "bad" person, where "bad" can be a proxy for certain prejudices. So, while I agree with the simplicity of the offense/offender rubric as an analytical tool, I would ask you to clarify the offender class: are there due process limitations on the offender characteristics that would mitigate the disparate treatment of offenders, whether by virtue of race, class, even the skill of the defense attorney?

Posted by: Jason Marks | Oct 13, 2004 11:12:37 AM

Kudos to all for helpful and insightful comments as I continue to think this all through (and keep the comments coming).

But keep in mind, everyone, that I am not (yet) trying to solve all the issues/problems raised by sentencing and modern reforms. Other constitutional concepts -- e.g., Due Process and Equal Protection and the 8th Amendment and even Separation of Powers -- could and should also be integrated into a broader theory of constitutional limits on sentencing laws. However, at least for right now, I am only trying to define the proper scope of the jury right, and I think the offense/offender distinction is of central importance.

In addition, as Justice Scalia likes to stress, we cannot and should not always expect the Constitution and the Constitution alone to chart a path toward perfect laws. It may be that the Constititution does not protect again certain sentencing disparities and that regulation of such disparities can only be achieved via statutory rules. However, Blakely ultimately stands for the proposition that you cannot trangress other provisions of the Constitution (i.e., the jury right) in an effort to legislatively regulate disparity.

Posted by: Doug B. | Oct 13, 2004 11:52:43 AM

It's fun to think up new sentencing systems and its good to hear you arguing that not EVERY fact that increases punishment need be treated as an element of an offense. Your offense/offender distinction seems basic and appealing. But there are other ways to slice the cake that avoid some problems that your distinction raises.

For example, if you still allow room for independent sentencing commissions and sentencing guidelines---and there are reasons to do so---it seems that commissions would have the power to create elements of crimes by writing guidelines that enhance punishment based on the manner in which a crime were committed. But surely defining elements is a job for the legislature. Allowing the federal commission to do so, for example, would exceed its statutory authority and maybe violate the separation of powers.

Why not use the rule in Apprendi to distinguish offense facts that are elements from those that are merely sentencing factors, as Judge Molloy held in Hankins? If the LEGISLATURE has linked a fact to an increase in the statutory maximum punishment, then the fact is an element and 6th amendment protections attach. Once a legislature does this, neither judges nor sentencing commissions can treat the fact like a mere sentencing factor. No more enhancing sentences based on uncharged, dismissed, or acquitted conduct. But judges could still find aggravating factors that increase punishment so long as they are not elements of potentially chargeable offenses. The federal guidelines are full of aggravating adjustments that are not elements of potentially chargeable offenses, as well as many that are.

This approach relies on the admittedly formal definition of element found in Apprendi, rather than a grand new essentialist theory of what are elements. But it seems a reasonable extension of Apprendi and Blakely and would solve a real problem in federal sentencing, without creating a batch of new problems or requiring a whole new system.

Is there anything in Apprendi and its progeny that lead you to believe the court will slice the cake your way? If the Supreme Court decides that Blakely applies to the federal guidelines, do you think Congress will be looking to enact a new sentencing code based on your offense/offender distinction? Just asking. Keep up the good work and the creative thinking.

Posted by: It's elemental | Oct 13, 2004 12:46:13 PM

The offense/offender distinction is intriguing and,in my mind, probably quite workable, and even - dare I say it? - pretty fair. Since the inception of the Guidelines, my all-time pet peeve has been the use of relevant conduct in sentencing in drug cases. (I have been an appellate Assistant Federal Public Defender for more than 14 years, doing "cold record" appeals from throughout the 10th Circuit.) I have seen, more times than I can count, clients having gotten slammed with 15-year, 30-year sentences - without ever having seen them coming. The offense/offender distinction would at least fix this, the most glaring injustice under the Guidelines that I personally see on a daily basis.

Posted by: Jill Wichlens | Oct 13, 2004 1:00:29 PM

Elemental -- I don't know if Prof. Berman believes SCOTUS will come out his way, but I think he's just trying to find a "better" (and more constitutionally sound) level of analysis (and thus write more law review articles, increase his (and his school's) prestige, get to be a commentator on Morning Edition, oh, and maybe have his ideas picked up by a judge or two ;)).

And that's where the Hankins analysis fails. Because, in Hankins-world, there are still FACTS OF THE OFFENSE found by a judge by less than a preponderance. The "truth" of what you DID would still not be decided by a jury. Yes, it would be good if uncharged or acquitted criminal conduct could not be considered, but I think Prof. Berman is saying that the Sixth Amendment requires more than that. The Hankins solution also allows for more subversion by the legislature. Let's say that theft of watermellons is the crime de jour, and the government wants to punish watermellon thieves more harshly because those people steal watermellons. Rather than enact a new law applying mandatory minima or increased punishment to watermellon thieves, instead they direct (or strongly suggest, or develop a study that ultimately recommends) a sentencing commission to enact a guideline increasing the base offense level if one stole a watermellon as compared to a car. Now, a judge can decide whether the article stolen was a watermellon by a preponderance, rather than that "element" being proved to a jury. It may make a difference if a defendant comes in and says "yeah, but I stole a really big cucumber."

My example may be a little far fetched, but the point is that if the jury right is a right for people to figure out what you did, then all of those sentencing factors that comprise your criminal actions should be proved to a jury BRD. The element/factor dichotomy does not make that distinction.

Posted by: District Clerk Battling Blakely | Oct 13, 2004 1:14:35 PM

Clerk:
Some may want juries to decide every single fact about an offense that increases punishment. Others may be satisfied to require juries to find only the basic facts establishing that an offense has been commiteed and leave it to judges to fine tune sentences based on sentencing factors. Under Hankins-analysis (I'm so glad someone else read that case!) the legislature gets to decide what are elements, applying the rule established by the Court in Apprendi. The Sixth Amendment would be vindicated by requiring juries to find all those facts.

If one is concerned that legislatures will subvert these protections by simply directing commissions to increase punishment under the guidelines, one might argue that the infirmity in Blakely was precisely that the LEGISLATURE, by statute, mandated increased punishment for kidnappinging performed with deliberate cruelty, thereby making that fact an element. Perhaps Congress does something similar when it specifically directs the commission to add enhancements, as it did, for example, with the enhancement for hate motivation. (Note that in the federal guidelines hate motivation already must be proved beyond a reasonable doubt, albeit to a judge and not a jury. This seems to recognize that this fact is more like an element than other aggravating factors.) This interpretation of the Apprendi/Blakely rule, which is arguably open to the Court, seems to avoid the problem you hypothesize. What did I miss?

Posted by: It's elemental | Oct 13, 2004 2:05:30 PM

I addressed this topic earlier when I commented on your discussion of Justice Kennedy's focus during the Booker/Fanfan arguments on which type of facts should be decided by juries under Apprendi/Blakely. I continue to believe that your approach, regardless of its merit as public policy,is inconsistent with the rationale underlying the Apprendi Court's decision to break away from the "sentencing factor" vs. "element" distinction.

Apprendi emphasized that the protections of the Sixth and Fourteenth Amendments extend to facts going "not to a defendant's guilt or innocence, but simply to the length of his sentence," and that the common law on which the court relied required not only the circumstances of the crime, but the "circumstances mandating a particular punishment," to be alleged in the indictment and determined by the jury. Throughout Apprendi, Ring, and Blakely, the Court singlemindedly focused on the dispositive question being whether the fact at issue increases punishment, not whether it relates to the "offense." Moreover, the Apprendi Court (temporarily) declined to overrule Almendarez-Torres not because recidivism relates to the "offender," but because "procedural safeguards attach[]" to any "fact" of prior conviction. An evaluation of whether a fact relates to the offender rather than the offense seems little different from the now-repudiated analysis of whether, in the absence of clear legislative intent, a fact should be treated as an "element" or "sentencing factor."

Regarding the wisdom of the proposal as policy, I'm not sure why, given time, juries wouldn't be as competent to evaluate issues relating to the offender as judges, as long as they do so in a separate proceeding, after finding guilt of the underlying criminal act. Judges may now have the advantage, but only because they've operated under statutory schemes (unconstitutionally) allowing them to decide such facts.

Posted by: Andrew C. Fine | Oct 13, 2004 2:40:51 PM

As a judge and former prosecuting attorney in Indiana, I have been trying to "conceptualize" what the best case senario was from where I sit. I like the offense/offender distinction. For the most part, that seems to me to be what we have been doing in Indiana. Factors related to the offense: proximity to a school, prior convictions for the same offense, possession of a firearm, amount of drugs, use of a vehicle, etc. are elements and are contained in the charging information.

Posted by: Jeff Smith | Oct 13, 2004 4:03:58 PM

Maybe the answer is that offender-related aggravators ought to be eliminated altogether, and incremental increases in punishment tied only to the offense.

Posted by: Mike Limrick | Oct 13, 2004 6:02:28 PM

Hate the sin, love the sinner.

Punishment should be imposed based on the crime of conviction. Any behavior or personality trait or circumstance not directly part of the crime of conviction is not subject to punishment in a just world. I am convinced that the Sixth Amendment lays this out.
Only mitigating factors should be considered by a judge, with a corresponding reduction in punishment where appropriate in his/her opinion. All aggravating factors should be part of the charge. (In other words, there would be no real aggravators, only charged crimes.)

If the bread was stolen, then the crime is charged. The sentence is legislated (to the smallest range possible). If it was stolen to feed the theif's neice, the judge may mitigate. If the theif was just having fun, no mitigation. If the theif hit the little old lady over the head to get her bread, charge the hitting too. That's a different crime. If the theif stole bread before and served his time, it is not related to this crime.

To address recidivism, possibly the scoring systems currently in place and the like can be used to determine "enhancements". Ideally, recidivism should be addressed, but not necessarily exclusively by punishment consisting of lengthened sentences. Rehabilitation ought to be a consideration. If one thinks that certain issues like violence can only be addressed with prison time, build that into the sentencing structures. But I hope we guard against preventive detention. If the crime was awful, an appropriate punishment would be a defacto preventive detention, which is functional.
This is not a lawyerly description, but is one given thought and heart. Here's to hoping it is a useful contribution.

Posted by: Jeannie | Oct 13, 2004 6:15:51 PM

Former federal judicial law clerk now criminal defense attorney. ("Boy that was step down!") Involved in guideline sentencing and appeals since 1987.

I find your academic argument compelling. There may be an essential offense/offender distinction at the heart of the right to trial by a jury. However, it seems to me that your distinction, in the end, will not matter to the client/offender. The institutional competency of the judiciary to sentence offenders will be thwarted by the institutional incompetency of Congress. The "tough on crime" Congress will legislate to limit judicial discretion as it relates to offender characterisitcs.

As you are aware, the guidelines have always contained an offense/offender distinction. Offender characteristics a judge could take into account were limited by the sentencing commission for purposes of setting the sentencing range. See, for example departures under Chapter 5. The Supremes didn't really like the limitations in Chapter 5 and decided Koon. Congress did not like Koon and limited permissible grounds for departure. I have no objective reason to believe that it is not going to be deja vu all over again. Congress will continue to limit the judicial discretion.

I wonder if Scalia has ever considered whether the limits placed on judicial discretion in the 20th and now 21st century by Congress comport with the framers' understanding of an independent judiciary (albeit unarmed and without purse) exercising judicial discretion? That, professor, opens up the real issue of whether we are a nation of laws or a nation of men in the bigger arena of competition among institutions.

Posted by: Keith | Oct 13, 2004 10:45:12 PM

Trial by Jury but Judge and procecutors have full control.....

When you take this innocent man to trial who is clearly innocent and everyone can see that by the way the case is presented and the facts to prove his innocents are all there. Only the prosecutors mix the story all around to make it seem like what they want it to be (which is usually what they do) but how about every time you as an attorney try to question the witness in this case with the same questions the prosecutors questioned their witness you have been objected to and the judge allows it but when it is your turn to object for the same reason your objection is ignored. (Case #02577 Defendant 18, Southern District of Texas) What do you do? Mr. Morris when your client's Sixth Amendment is violated by a member of law who is on the stand trying to make you look like the bad guy to the jury and you continuously demand a miss trial and the Judge continually denies it and tells you forget it and to not ask it again you will have to take it up with the 5th Circuit. (Case #02577 Defendant 18, Southern District of Texas) What do you do? What do you do with the prosecutors are abusing the power and the Judge is helping them get away with it and it is clearly obvious to everyone who is observing. (Case #02577 Defendant 18, Southern District of Texas) What do you do? And when the Judge improperly instructs the Jury before your client gets found guilty for a life sentence because he just wanted to prove his innocence and everyone including his attorneys and other attorneys new the facts proved his innocence. (Case #02577 Defendant 18, Southern District of Texas) What do you do? And know because of the lies and the contempt on the prosecutors side and perjury that was allowed, YOUR client has been sentenced to life in prison and his three young children will grow up without a father. And his wife will struggle to keep them from loosing there home. WHAT DO YOU DO? (Case #02577 Defendant 18, Southern District of Texas)

Posted by: Leigh | Oct 14, 2004 10:27:20 AM

Leigh:

I feel your frustration. At the end of the day, the offender/offense analysis, Blakely, and the rest of this debate cannot make a Federal Judge treat a Defendant with Respect. In that instance, our only hope resides in the power of the jury and the Sixth Amendment guarantees of an impartial jury. In your case, I pray that the Fifth Circuit sees the abuse, sees the miscarriage, and remands.

I noticed that your client was defendant #18. I am guessing this was a conspiracy case tried in Laredo. One of the greatest abuses in the Federal Criminal system (after Relevant Conduct), is the low, low, standards of proof required for a Conspiracy conviction. Winning an aquittal for one defendant among many guilty defendants is a daunting task indeed.

You will get them next time.

Posted by: DockeryMorris | Oct 14, 2004 11:08:45 AM

Thank you Dockery Morris for your words of kindness. This case has been a conspiracy case in Houston, Texas. I am hoping someone will see this and have a heart to step in and help us with our appeal, someone who is very good and experienced at what they do. You always here about those miracle stories where someone helps the victim so I am searching everywhere for my needle in a hay stack. Please if you can help us please do so or if you know anyone that will. Please help I beg of you.

Posted by: Leigh | Oct 14, 2004 12:28:00 PM

I am not a lawyer, prosecutor, etc. I am a wife of a non-violent, 1st time drug offender who is serving 16 yrs in federal prison. Leigh, I hope the family of your client realizes how fortunate, no matter the outcome, that they were to have you represent their loved one. I wish my husband would've had such passionate counsel.

Posted by: HanginOn | Oct 14, 2004 1:03:12 PM

I am a defense attorney and NC Legal Coordinator for Families Against Mandatory Minimums. Thought you would be interested in a proposed Blakely fix in North Carolina as it relates to the offense/offender dichotomy.

It is my understanding that the NC Sentencing Commission Blakely subcommittee has voted to recommend to the full Commission that offense characteristics may be tried simultaneously with guilt/innocence and determined by the jury at the same time. As far as offender characteristics are concerned, the judge will be given discretion to bifurcate the sentencing trial from the guilt innocence trial.

I'll let you know if full commission and legislature accepts that dichotomy.

Bruce Cunningham

Posted by: bruce cunningham | Oct 14, 2004 10:37:27 PM

"Put simply, the state accuses and prosecutes persons for what they do, not for who they are; consequently the jury trial right concerns offense conduct while having no application to offender characteristics." Please replace "the jury trial right" with "punishment". Otherwise, you might be heard to say that citizens constitutionally may be prosecuted and tried without a jury, and punished, based upon "who they are." (Maybe you wanted to say that, but I don't think that's the issue in Blakely et al.)

Suppose a state decides to revive the offense of being a common scold. (Yeah, I know, the "offense" could be defined as causing a nuisance. But still, bear with me -- the offense also can be phrased in terms of the offender. Do a quick Google on "common scold" and you'll see what I mean. ) Should the pretend legislature decide to phrase the revived offense as a criminal offender characteristic, few would argue that one charged with the offense (when the penalty is the cucking stool) has the right to a jury trial on the offense.

Mr. Fine has it right. The question is whether a particular fact is used to punish or increase punishment. If so, the right to have a jury decide it attaches, regardless of how the legislature decides to characterize it -- e.g., causing a nuisance or being annoying.

Posted by: Scold | Oct 18, 2004 8:07:06 PM

The federal guidelines have a downward adjustment for a defendant's minor role in the offense. How would you characterize this -- an offender or offense characteristic? Keep in mind that first the judge must decide how many co-participants there were (whether indicted or not), then decide each one's separate role and level of culpability, and then compare the defendant's role to theirs. I don't think it is possible to call this an "offender" characteristic when it requires so much fact-finding regarding the "offense." There are several such examples of "mixed" questions in the federal guidelines. The point being, the offense/offender conceptualization is interesting but may be ultimately useless from a practical standpoint.
I believe it was also noted by someone else that the original rationale for Almendarez-Torres was that criminal history is not an "offender" characteristic at all, but a mode of commission of the "offense." Not exactly a legal fiction so much as pure hogwash, but it's something that needs to be dealth with in trying to conceptualize Blakely along the mode you suggest.

Posted by: KebMo | Oct 23, 2004 8:41:55 PM

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