June 26, 2004
What happens now after Blakely?
I am extremely curious --- and would be eager to hear from prosecutors, defense atorneys or judges --- how sentencings are being handled after Blakely in federal courts or in states with guideline structures. Is everything on hold until further rulings? Are sentencings going forward with efforts to comply with Blakely?
Relatedly, I am extremely curious --- and would be eager to hear from commissioners and staffers --- about the discussions and debates taking place in sentencing commissions about how to responded to Blakely.
New York's death penalty ruled unconstitutional
Though overshadowed by the Blakely blockbuster, an important death penalty ruling Thursday by New York's highest court should not be overlooked. The New York Court of Appeals found New York's death penalty statute unconstitutional under the New York State Constitution because of its jury deadlock instruction. That instruction provides at the penalty phase that jurors must to decide unanimously whether defendant should be sentenced to death or to life without parole, but also that if they failed to agree, the court would sentence defendant to life imprisonment with parole eligibility after serving a minimum of 20 to 25 years. In a decision in People v. LaValle which can be accessed here, the court concluded that this instruction "gives rise to an unconstitutionally palpable risk that one or more jurors who cannot bear the thought that a defendant may walk the streets again after serving 20 to 25 years will join jurors favoring death in order to avoid the deadlock sentence:"
Whether a juror chooses death or life without the possibility of parole, the choice is driven by the fear that a deadlock may result in the eventual release of the defendant. Under New York's deadlock instruction the choice is not, as it should be, the result of a reasoned understanding that it was the appropriate one. We hold today that the deadlock instruction ... is unconstitutional under the State Constitution because of the unacceptable risk that it may result in a coercive, and thus arbitrary and unreliable, sentence.
Though a long decision, all the opinions in LaValle are compelling, especially as the majority and dissent debate the appropriate remedy in the wake of this ruling. The majority ultimately concludes that the "defect in the existing statute can only be cured by a new deadlock instruction from the Legislature;" the dissent complains that the majority's decision "elevates judicial distaste for the death penalty over the legislative will." And in a lovely concurrence, Justice Rosenblatt states: "Just as judges should not shrink from carrying out the legislative will, so too should they not shrink from declaring statutes unconstitutional in proper cases, however distasteful that may be."
June 25, 2004
Sentencing Guidelines are dead! Long live Sentencing Guidelines!
The Supreme Court's decision in Blakely seems to mean that the standard operating procedures for most sentencing guideline systems --- including those of the federal sentencing guidelines --- are no longer constitutionally sound. But, despite Justice O'Connor's ominous statement that "[o]ver 20 years of sentencing reform are all but lost," I do not think the only real options are to return to the dark ages of unfettered judicial sentencing discretion or intricate systems of determinate sentencing that prosecutors essentially control through plea bargaining. Rather, I think it is quite possible to build a sound and sensible structured sentencing system that accords with that new constitutional requirements of Blakely (whatever they are) and that also achieves many of the important policy goals pursued through modern guideline reform efforts.
How? A system of relatively simple offense guidelines --- starting with a modified charge-offense approach and adding only a few very basic and general categories of aggravators (which would be subject to the Blakely rule) --- could be both workable and effective. And jurisdictions worried that their current guideline systems have been hit with a Blakely wrecking ball could quickly recast their systems along these lines, but only if their sentencing commissions take a bold and active leadership role in this post-Blakely world. I am very eager to see if, and how, sentencing commissions step up to the plate. They have never been needed more than now.
To paraphrase the dramatic voice-over from the TV classic The Six Million Dollar Man:
We can rebuild [the guidelines]. We have the technology. We have the capability to make the world's first [constitutional guidelines]... Better than [they were] before. Better . . . stronger . . . [fairer].
June 24, 2004
Schriro . . . back to reality
Unsurprisingly, the Supreme Court today handed down Schriro v. Summerlin, concerning the retroactive application of the Ring / Apprendi rule, on the same day it expounded upon Apprendi's full meaning in Blakely v. Washington. And, given that Blakely extends Apprendi and calls into question two decades of guideline sentencing, it also was not surprising that the Supreme Court decided that these doctrines are not to be applied retroactively.
The opinions in Schriro are linked here, and the decision merits further analysis and commentary in the days ahead. But I am still reeling from Blakely, and Schriro will just have to wait.
The Supreme Court handed down Blakely v. Washington this morning, and the only word that summarizes the ruling is WOW. Here is a link to all the opinions in Blakely, which essentially holds that any and every fact which increases the legally available sentence must be found by a jury or admitted by the defendant. In other words, it will no longer be constitutional for guideline sentencing systems to allow judges to find facts which increase applicable sentencing ranges. Of course, this is how nearly every sentencing guideline system works, and thus the ramifications of this decision for modern sentencing reforms cannot be overstated.
Each of the four opinions --- Scalia for the majority, O'Connor, Kennedy and Breyer all dissenting --- is rich with intrigiung ideas, compelling arguments and rhetorical flourishes. Sentencing scholars and also constitutional scholars are likely to be talking about this opinion for a long time. And, of course, Blakely will not be the last word on these subjects. There will be lots and lots more litigation (some of which will surely make its way again to the Supreme Court) about what this rule now means for the operation of structured sentencing systems. Stay tuned.
June 23, 2004
ABA Kenndy Commission report
After a nearly yearlong review of U.S. prison and correctional systems, the ABA's Justice Kennedy Commission has completed its work and today presented its final report to Justice Kennedy. Copies of the reports can be accessed here through the ABA website. The report --- which address four primary sets of issues: sentencing and incarceration issues, racial and ethnic disparities in criminal justice systems, prison conditions and prisoner reentry issues, and pardons and clemency processes--- will be considered by the House of Delegates in August. A succinct summary of the Commissions recommendations is available here. Here are excerpts from the ABA's press release to provide a flavor of the Commisson's findings and recommendations:
The commission noted that the United States imprisons more people than any other country in the world. With more than 2.1 million people behind bars, and some 650,000 set to be released this year, the commission urged jurisdictions to invest in programs that help inmates return to communities, provide alternatives to incarceration for offenders who would benefit from substance abuse and mental illness programs, and help eradicate the disproportionate impact "tough on crime" laws have on minorities. The commission also called on Congress to repeal mandatory minimum sentences.
The commission noted that about one-third of the more than 650,000 inmates who will be released this year can be expected to return to prison. Many of its recommendations are intended to help jurisdictions find ways to reduce the recidivism rate. One method, the commission noted, is for Congress and state legislatures to eliminate unnecessary legal barriers that make it difficult for some to become productive members of society. People with drug convictions-even minor possession charges, for example, are permanently ineligible for federal student loans, housing assistance or public assistance.
June 22, 2004
Chief Judge William Young's Magnum Opus Declaring Federal Guidelines Unconstitutional
Apparently we did not have to wait for the Supreme Court to rule in Blakely to have a blockbuster ruling that Apprendi renders the federal sentencing guidelines unconstitutional. In a truly remarkable 177-page opinion released late Monday, Chief Judge William Young of the U.S. Distict Court of the District of Massachusetts has ruled that the logic of Apprendi and Ring renders the federal sentencing guidelines unconstitutional.
Chief Judge Young’s opinion is remarkable for its scope and depth, as well as its wide-ranging criticisms of the entire fedral sentencing guidelines system. Whatever the Supreme Court's forthcoming decision in Blakely says about Judge Young’s legal conclusion, this opinion serves as something of a "State of the System" statement about federal sentencing reform. It merits all the time it takes to read.
June 21, 2004
Sentencing in Alabama
For another interesting and important document concerning state sentencing systems, here is the recently released 2004 Annual Report of Alabama Sentencing Commission, which outlines the progress that has been made toward a reformed sentencing system for Alabama, the current state of Alabama's criminal justice system, and the recommendations of the Commission for further improvements.
As the report details, the Alabama Sentencing Commission is urging the Alabama Legislature to approve the Commission’s Sentencing Standards, which are a set of voluntary sentencing guidelines. In advocating for these Sentencing Standards, the Alabama Sentencing Commission tellingly states:
We believe everyone will recognize the value of the voluntary standards and realize that they are nothing like the federal guidelines or other state mandatory sentencing guidelines. Instead, they will preserve judicial discretion and promote sentencing uniformity. Moreover, these standards are the first step toward truth-in-sentencing and more informed sentences.
June 20, 2004
Sentencing in Oklahoma
Continuing the effort to spotlight interesting research and policy analysis in state sentencing systems, here are a few very interesing documents coming from Oklahoma earlier this year. The Oklahoma Sentencing
Commission's Report to the Oklahoma Legislature of Statewide Felony Sentencing in 2002 is an impressive document not only because of its comprehensive review of Oklahoma state sentencing data, but also because it reports information through a series of compelling charts and graphs. And the Oklahoma Sentencing Commission Recommendations to the Legislature about Felony Sentencing is an impressive document not only because of its detailed and precise findings on key sentencing issues, but also because it makes a number of direct and provoctive recommendations for improving sentencing law and practice in Oklahoma.