October 19, 2004
Minnesota working on offense/offender idea
As noted here, I have been starting to conceptualize Blakely in terms of an offense/offender distinction (and I hope to be able to share a draft of an article to this effect in this space real soon). And, interestingly, we have seen (conflicting) intermediate appellate court decisions from New Jersey and Oregon discussing the idea that Blakely may only apply to "offense" facts and not to "offender" facts.
In a fascinating decision today, State v. Hanf, 2004 WL 2340246 (Minn. App. Oct. 19, 2004), a Minnesota intermediate appellate court hangs its hat on an offense/offender distinction, though does so through a heavy reliance on the continued validity of Williams v. New York. Here are some very lengthy highlights (citations omitted):
The Minnesota Sentencing Guidelines specify sentences that are presumptive with respect to both disposition and duration.... But caselaw has developed an essentially separate category of reasons for dispositional departures. Those reasons relate to the individual characteristics of the offender, and may not be used to support a durational departure, although some offense-related factors may be used to support dispositional departures....
In interpreting the Minnesota guidelines, our supreme court never attempted to limit dispositional departures to the largely offense-related departure factors listed in the guidelines. In the pre-guidelines indeterminate sentencing scheme, parole release decisions had come to be governed by a matrix system in which a risk of failure level was assigned to each inmate. This level was determined based on identified factors disclosed in "background information."...
Dispositional departures based on individual offender characteristics under the guidelines are like the traditional sentencing judgments made by judges in indeterminate sentencing schemes. The validity of those judicial judgments is conceded in Blakely....
Appellant would argue that he has a "right" to a stayed sentence because that is the presumptive disposition under the guidelines. But that argument is unconvincing. First, the presumptive disposition is determined in large degree by the defendant's criminal history score. As discussed above, that score is not in any way determined by the jury's verdict, despite the apparent assumption to the contrary in Blakely. Second, the "right" referred to in Blakely must arise from the jury's verdict, and that verdict historically has never determined sentence dispositions, at least since courts acquired the authority to stay sentences. Third, while the elements of the offense found by the jury help determine what is a "typical" offense warranting the presumptive duration, Minnesota courts have not attempted to define what is a "typical" offender to serve as a baseline for the proper disposition of any type of offense.
In practice, because the dispositional decision is largely predictive, Minnesota defendants must convince the court that ... they can succeed on probation, whether or not that is the presumptive disposition. At least, defendants must convince the court they are not particularly unamenable to treatment in a probationary setting to avoid an upward dispositional departure. The traditional role of the jury has never extended to determining which offenders go to prison and which do not. Traditionally, courts and parole officials made "their respective sentencing and release decisions upon their own assessments of the offender's amenability to rehabilitation." Mistretta v. United States, 488 U.S. 361, 363 (1989). The court's power to impose probation, in particular, resulted in an increase in judicial discretion channeled by "careful study of the lives and personalities of convicted offenders," particularly in the form of reports by probation officers. Williams v. New York, 337 U.S. 241, 249 (1949).
The point is not, as the state argues, that these offender characteristics could not be assessed by juries. If the Sixth Amendment required juries to determine "amenability to probation," that function would have to be assigned to them. But because such decisions are, in essence and in Minnesota practice, the equivalent of indeterminate sentencing, which Blakely approves, the Sixth Amendment does not require it....
This tradition establishes that an offender's amenability or unamenability to probation is not a "fact," within the meaning of Apprendi, that increases the offender's penalty. A dispositional departure requiring an offender to go to prison is undoubtedly a greater penalty than probation. But an offender's unamenability to probation is a judgment reached after consideration of a series of facts. It is not a "fact necessary to constitute the crime," Apprendi, 530 U.S. at 500, but rather a strictly offender-related conclusion....
It could be argued that the requirement of departure reasons sufficiently distinguishes dispositional departures under the guidelines from indeterminate sentencing. But, although Blakely refers to the "facts supporting [the] finding" of deliberate cruelty that authorized the greater sentence in that case, 124 S.Ct. at 2537, it did not compare the degree of formality of fact-finding under the Washington Sentencing Guidelines with the fact-finding traditionally involved in indeterminate sentencing schemes that Blakely approved. We conclude that the determination of amenability or unamenability to probation is not the determinate, structured fact-finding that Blakely holds the jury must perform.
The Supreme Court has made a similar distinction with respect to the offender's criminal history, or recidivism, which it has termed "a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence." Almendarez-Torres v. United States, 523 U.S. 224, 243 (1998). The Court stated that, "to hold that the Constitution requires that recidivism be deemed an 'element' of petitioner's offense would mark an abrupt departure from a longstanding tradition" in which recidivism went to the punishment only. Id. at 244. The same could be said with even greater force concerning the offender characteristics that govern dispositional departures, which extend beyond the offender's criminal history score. To hold that the Sixth Amendment requires those personal characteristics to be found by a jury would be an even further departure from tradition than to treat recidivism as an "element." We do not believe that Blakely requires this result.
October 19, 2004 at 05:29 PM | Permalink
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The offense-offender distinction may or may not "make sense." The problem I see is the language of Apprendi and Blakely themselves--"any fact." How are offender facts any less "facts" than offense facts, whatever the traditional divide might be? And in Apprendi itself, is the hate crime / motivation fact an offense fact or an offender fact? It seems to me it could be (characterized as) either.
Posted by: Michael Ausbrook | Oct 20, 2004 2:35:30 AM