July 3, 2004
More views from the academy and from the states
Professor Kevin Cole has an op-ed analysis of Blakely here, which concludes:
The Blakely decision is an attack not on severity, but on the general structure that has been employed fruitfully to improve sentencing in countless jurisdictions. There should be a better reason to carry out this attack than the preservation of a jury trial right that can so easily be taken away.
And in states across the nation, from Alaska to Maryland, Blakely is being discussed and assessed.
New variations in Blakely coping
Peter Goldberger reported "from the trenches" late last night that "U.S District Judge Jerome Simandle (D.N.J.) is calling the jury back in, following guilty verdicts today, for a 'sentencing trial' starting next week, over defense objection that there is no statutory or procedural-rule basis for the proceeding, and the matters to be tried were not charged in the indictment." He also provided this link to an article discussing the case.
On another front, Ken Lammers over at CrimLaw is reporting "rumors and speculation [suggesting] that in Virginia, AUSA's are adding Blakely waivers to their plea agreements. However, if the grapevine is correct, while some judges are accepting the waivers, a larger number are refusing them."
UPDATE: As you'll see from the comments, the use of "Blakely" waivers in the Eastern District of Virginia has been confirmed. In fact, here from CrimLaw, is the text of the waivers being sought by federal prosecutors:
I am also waiving any right I may have for a jury determination of any and all facts relevant to the application of any Sentencing Guideline factors by the United States District Judge. I agree the District Judge should make the Sentencing Guideline determination using the preponderance of the evidence standard. I understand that by signing this plea agreement I waive any right to a jury determination of sentencing factors that may exist under Blakely and Apprendi, and any case interpreting these two Supreme Court decisions.
July 2, 2004
Minnesota's a leader again
Not long after I suggest that the feds learn from the states, I see this report of how Minnesota is sensibly handling Blakely:
Minnesota Gov. Tim Pawlenty ordered a review of the state's sentencing procedures so they'll comply with a recent U.S. Supreme Court ruling on Friday. He said the court decision "appears to have major ramifications" for Minnesota's criminal justice system and asked the Sentencing Guidelines Commission to make both short-term and long-term recommendations for changes. The short-term recommendations will be due in 30 days.
Minnesota is rightly praised for leading the states in the development of sound guideline sentencing reforms --- see, e.g., Richard Frase, Sentencing Guidelines in Minnesota, Other States, and the Federal Courts: A Twenty-Year Retrospective, 12 Federal Sentencing Reporter 69 (1999) --- and it is nice to see Minnesota taking the lead again.
Resources for those weekend plans
Well, the holiday weekend has all but officially started, and still no official word from the USSC or DOJ. I suppose that fact can help limit the number of footnotes that are needed in all the habeas petitions that will be drafted this weekend. In all seriousness, if it proves to be a busy Blakely weekend, and I'll see what I can do to keep up. For those who will be drafting, I would expect the NACDL Blakely page and the FDAP Blakely page to have more helpful resources soon.
In the meantime, I've already found available a sample Defendant's Memorandum in Aid of Resentencing courtesy of The Office of the Federal Public Defender for the District of District of Columbia.
UPDATE: Jason D. Hawkins, AFPD in the Northern District of Texas was kind enough to send along his Supplemental Objection to a Presentence Report that he just filed, which now should be available at the top of this post. As he put it, apparently I "correctly noted there will be many people drafting (including me) over the July 4 weekend and maybe this will help lighten the load
ANOTHER UPDATE: Peter Goldberger, an advisory board member at FAMM, a full time federal criminal sentencing and appellate practitioner, a former law prof, and a NACDL activist, was kind enough to send along "a six-page supplemental memo for a sentencing coming up in a couple of weeks [with] removed client identifying info." It, too, should be available here.
Other institutional voices
I was extremely honored to receive an e-mail this afternoon from District Judge Joe Goodwin (author of the recent Shamblin decision). He wanted to supplement my call for other institutions to start responding to Blakely. Here's Judge Goodwin's astute commentary:
I wholeheartedly agree that we should be hearing from others on the issues raised by Blakely, [but] it is impractical for judges to stop the system on the tracks in every instance. Judges have deliberating juries, sentencings subject to revision for clear error within 7 days, and scheduled sentencings which will stack up fast. I...was faced with a Rule 35(a) motion and a 24 hour deadline. To the point --- we need the help of the academic community. I urge you and your colleagues to make your views known to the judiciary, the Congress and the executive.Of course, I agree academics have a role to play (and I know many are trying to do their part via blogs, the Federal Sentencing Reporter and other projects such as the on-going work of the ABA and ALI).
In addition to listening to academics, I hope Congress and others considering the new world of federal sentencing will consider the many important insights and ideas to be drawn from state sentencing developments. Proving that Justice Brandeis was indeed an "omniscient seer", the "laboratory" of the states has been recently producing many innovations and considerable successes in the arena of sentencing reform. This terrific report from the Vera Institute of Justice highlights that recently "more than 25 states took steps to lessen sentences and otherwise modify sentencing and corrections policy during the 2003 legislative sessions [making] significant changes ranging from the repeal or reduction of mandatory minimum sentences for drug-related offenses to the expansion of treatment-centered alternatives to incarceration."
Importantly, the well-established trend to cut back on harsh mandatory sentences is being driven largely from Republican quarters. Here is a an article from Governing Magazine which helps highlight that, from Alabama to Maryland to Michigan to Texas, Republicans have been leading proponents of the modern shift from penal retribution toward rehabilitation.
The National Association of Criminal Defense Lawyers (NACDL) --- which accurately promotes itself as "the preeminent organization in the United States advancing the mission of the nation's criminal defense lawyers to ensure justice and due process for persons accused of crime or other misconduct" --- has a number of very helpful resources up and in continued development on the NACDL website.
The NACDL did a great job collecting resources concerning the Feeney Amendment. Now they have up an Action Alert about the Sensenbrenner drug bill, which the NACDL is understandably calling "Feeney II."
In addition, NACDL has an effective and growing Blakely page.
In the interest of balance and comprehensive coverage, I encourage readers to send me any and all links to similar resources being collected by prosecutors.
New York rulings of great interest
In an opinion which can now be found on Lexis, US v. Medas, 2004 U.S. Dist. LEXIS 12135 (E.D.N.Y. July 1, 2004), District Judge I. Leo Glasser discusses Judge Cassell's Croxford opinion and states that he is "driven to arrive at the same conclusion [that the FSG are unconstitutional] for the reasons stated by Judge Cassell in a language that is eloquent in its simplicity and clarity."
Judge Glasser discusses this issue in a fascinating context. Apparently he has a jury deliberating in a criminal case now, but "immediately after the jury retired to deliberate the government submitted a 20 page Supplemental Verdict Sheet with a request that it, too, be provided to the jury. That Supplemental Verdict Sheet, the government urged, was the legitimate offspring of Blakely." After explaining that the government's "pre-Blakely indictment does not allege the enhancing sentencing factors the government now requests be submitted to the jury post-trial" and that "no mention was made of those factors during the trial," Judge Glasser refuses to submit the Supplemental Verdict Sheet to the still deliberating jury. (And, along the way, Judge Glasser gives a nice plug to Judge Learned Hand.) Another WOW!
While we are in a New York state of mind, I've been meaning to mention a ruling by Judge Deborah Batts of the Southern District of New York from earlier this week. In United States v. Gonzalez, 2004 U.S. Dist. LEXIS 11760 (S.D.N.Y. June 28, 2004), Judge Batts noted that "Blakely calls into serious question the long-standing practices of federal courts in implementing the United States Sentencing Guidelines." She granted the Government its requested two-week adjournment while putting "the parties on notice that ... the Court is currently of the mind to sentence the Defendant solely on the basis of the facts admitted by the defendant during his guilty plea."
July 1, 2004
Hearings on Sensenbrenner bill
While we await word from the USSC and DOJ on Blakely, we can soon expect to hear from some Congress members about federal sentencing. A hearing scheduled for Tuesday, July 6 before the House of Representative's Crime Subcommittee, although it's formally to consider a drug sentencing bill that Congressman James Sensenbrenner (R-Wis.), introduced about a week before Blakely changed the sentencing universe.
Sensenbrenner's bill, H.R. 4547, is called “Defending America’s Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2004.” Though styled as a measure to promote drug treatment while protecting children, the bill includes a broad slate of harsh mandatory minimum sentences for a wide rnage of drug crimes.
Families Against Mandatory Minimums has a thoughtful explanation of the bill's most troublesome features here as well as a full analysis of the bill's provisions here. Likewise, the folks at TalkLeft discuss the Sensenbrenner bill's problems here and here.
Of course, the Blakely decision will be an unavoidable topic of discussion during the hearings. But how will it be discussed? Will there be any bashing of Justice Scalia and Judge Cassell as "activist judges"?
Other institutions, rulings and remedies
I find modern sentencing reform fascinating in part because of the institutional dialogues that can and will take place, especially when sentencing reform is being done well. Notably, Justice Kennedy spoke to this issue in his intriguing Blakely dissent. (And, pardon the plug, I've written at some length about these issues in a number of articles. See Appreciating Apprendi: Developing Sentencing Procedures in the Shadow of the Constitution, 37 Criminal Law Bulletin 627 (2001); Balanced and Purposeful Departures: Fixing a Jurisprudence that Undermines the Federal Sentencing Guidelines, 76 Notre Dame Law Review 21 (2000); A Common Law for This Age of Federal Sentencing: The Opportunity and Need for Judicial Lawmaking, 11 Stanford Law & Policy Review 93 (1999).)
But, disturbingly, at perhaps the most important time for such a dialogue in the federal system, we are only hearing from judges. It's now a full week since Blakely came down, and we've not heard a single official word from the U.S. Sentencing Commission or the U.S. Department of Justice. Though exactly what these other branches should say is quite debatable (and perhaps is being hotly debated at this moment), I really do not think silence is the right choice. At the very least, the USSC or the DOJ could (and should?) encourage judges to hold off on rulings or annouce alternative sentences in order to keep the short-term Blakely damage under control. Or, more boldly, they might assert that, until the Supreme Court rules otherwise, an administrative guideline system is arguably different in a constitutional sense than a statutory guideline system. Or, they might even (tentatively?) concede the constitutional problems and suggest a preferred remedy.
All the substantive questions here are hard and contestable; but my main point is that there should be others addressing these issues right now besides just judges. Of course, eventually, every instititution will have some say, but there is no time like the present to get going with the "constructive discourse" Justice Kennedy advocates.
Rapid-fire post-Blakely rulings
Though it seems most federal district courts put sentencings on hold while everyone tries to figure out Blakely, Judge Joseph Goodwin of the Southern District of West Virginia can be added to the list of judges who believe there is no time like the present. Here, in a thoughtful and thorough opinion in US v. Shamblin, Judge Goodwin concluded that a defendant involved in significant drug operation --- who would have received a life sentence before Apprendi and 20 years before Blakely --- could only now be sentenced to a term of 12 months! Interestingly, in footnote 11 of this opinion, Judge Goodwin expressly rejects Judge Cassell's conclusions in US v. Croxford about the right way to sentence now in light of the conclusion that Blakely applies to the federal guidelines.
Meanwhile, I have heard from a few lawyers that some federal circuit courts are, sua sponte, asking for expedited supplemental briefing on the impact of Blakely on pending guideline appeals. I wonder which circuit will be the first to rule on Blakely, and I find especially intriguing the idea of another summer session for the Supremes raised here by the smart folks at Goldstein & Howe on their great SCOTUS blog.
More Blakely resources for Californians and others
The folks at The First District Appellate Project (FDAP), a non-profit law office located in San Francisco, deserve much credit for already providing the most detailed and effective resources on the potential impact of Blakely. Though the two great memos they have already posted here are only focused on what Blakely means for California state cases, their analysis and their plans to provide sample brief should be of great help to folks trying to deal with Blakely issues throughout the country. Keep up the good work, FDAP.
June 30, 2004
Watching the Blakely cataclysm/disaster/havoc
In his decision declaring the U.S. Sentencing Guidelines unconstitutional, Judge Cassell spoke of the "potentially cataclysmic implications" of his holding. Similarly, Justice O'Connor in her dissent lamented the "disaster" and "havoc" to follow from the majority's ruling. Whatever adjective fits best, it is quite a spectacle to watch what is happening. First, here and here are two Washington Post articles describing federal sentences that already have or could soon be altered as a result of Blakely.
Second, attached here in PDF form is a portion of the transcript from a federal sentencing on June 28, 2004 by Maine District Judge D. Brock Hornby in US v. Fanfan. Judge Hornby concludes that the U.S. Sentencing Guidelines are "exactly comparable to the Washington state scheme in all respects material to the Blakely decision." Then, Judge Hornby concludes that he cannot consider at sentencing relevant conduct drug amounts beyond the 500 grams of cocaine powder as found by the jury, he can not include "crack" testified to but not charged in the indictment and not found by the jury and he can not apply a role enhancement. Thus, despite a pre-sentence report calculating an offense level of 36 and a guideline sentencing range of 188-235 months, Judge Hornby decides Blakely requires reducing that to an offense level of 26 (500 grams powder = offense level 26) for a sentencing range of 63-78 months. Exercising his discretion and finding the defendant was a leader, he sentences at the maximum within the range, 78 months, a fine and 5 years supervised release.
Blakely's (lack of) impact in Pennsylvania
Sylvester Stallone through the character Rocky Balboa taught us that Pennsylvanians know how to take a punch. Additional evidence can be found in this op-ed about the status of Pennsylvania's guidelines in the wake of Blakely. The piece is co-authored by Steven L. Chanenson, Villanova law professor, Federal Sentencing Reporter editor, and member of the Pennsylvania Commission on Sentencing, and State Rep. Frank Dermody, D-Oakmont and chairman of the Pennsylvania Commission on Sentencing. It explains:
[The] U.S. Supreme Court delivered a legal haymaker that has sent the criminal sentencing world reeling.... Various commentators have warned that the Blakely decision will call into question thousands of criminal sentences.... Although Blakely packs the punch of a heavyweight champ for the federal system and many state sentencing systems, it barely laid a glove on Pennsylvania's guidelines....
[Pennsylvania's] guidelines limit the judge's discretion only concerning the minimum sentence. Pennsylvania's guidelines say nothing about the maximum sentence, which can be as high as the statutory maximum. Pennsylvania judges, unlike federal judges, are not required to find facts in order to increase a defendant's maximum sentence. So the Pennsylvania system provides needed sentencing guidance while largely avoiding the problems the Supreme Court discussed....
While the Supreme Court has left some criminal justice systems dazed and their sentencing guidelines in danger of collapse, the Pennsylvania guidelines remain standing.
Judge Cassell declares USSG unconstitutional
I previously noted that law professors like to get the first word on important cases, and apparently that maxim holds even when they become judges. U.S. District Judge Paul Cassell of the District of Utah, who did interesting and provocative work as a law professor before he started doing interesting and provocative work as a judge, became (to my knowledge) the first federal judge to officially decalre the federal sentencing guidelines unconstitutional after Blakely. Here is a link to Judge Cassell's opinion in US v. Croxford, as well as a link to an article discussing Judge Cassell's ruling.
Update: I've just now had the chance to read Croxford and it is almost as breathtaking as Blakely itself. A must read for all Blakely followers today!
June 29, 2004
Reports about Blakely from the field
I am pleased that various folks in various settings are starting to e-mail me with formal and informal reports about efforts and plans to deal with Blakely. Keep those cards and letter coming (and let me know if I am have your permission to post your reports). You can find here a post reporting the Blakely "word on the street" in one jurisdiction. In addition, I received an important and helpful e-mail from Jeffrey L. Fisher, the lawyer from Davis Wright Tremaine LLP, who won Blakely's case in the Supreme Court. Here's what he has to say:
One thing I think it's important for people to know is that, at least as far as the states are concerned, we're not in uncharted waters. Kansas has already been here, and it provides a useful source from both a legislative and a judicial point of view. Following the Kansas SCt's decision in State v. Gould, 23 P.3d 801 (Kan. 2001), holding that Apprendi applied to facts supporting upward departures under its state guidelines, the Kansas legislature amended the guidelines to comply with Apprendi. See Kan. Stat. Ann. 21-4716, 4718. (In fact, Justice Scalia cited this legislative response in the Blakely opinion.) These amendments may provide a helpful template for legislatures and commissions in guideline states; the word from Kansas is that they work just fine.
In addition, and perhaps even more helpful to lawyers out there, the Kansas courts following Gould have developed a rich body of law concerning how to deal with defendants who received upward departures before Gould came down. There are cases dealing with defendants who pleaded guilty without challenging the aggravator, e.g, State v. Pruitt, 60 P.3d 931 (Kan. 2003); defendants who stipulated to the aggravator, State v. Cody, 35 P.3d 800 (Kan. 2001); defendants who agreed to the upward departure, e.g. State v. Cullen, 60 P.3d 933 (Kan. 2003); State v. Johnson, 55 P.3d 927 (Kan. App. 2002), and many more permutations. There also are cases addressing how courts should proceed until there is a new legislative procedure for finding aggravating facts that complies with Apprendi. See, e.g., State v. Kessler, 73 P.3d 761, 771-72 (Kan. 2003); State v. Santos-Garza, 72 P.3d 560 (Kan. 2003).
Law profs start weighing in on Blakely
Though courts and legislatures get to have the last word on most matters, law professors often try to get the first. So, today's New York Times has this op-ed from Kate Stith and Bill Stuntz, who call for Congress in the wake of Blakely to convert the binding federal sentencing guidelines into "advisory sentencing guidelines." And over at Findlaw, Sherry Colb provides an extended analysis of Blakely in which she explains that, "in spite of all of the fanfare [about the decision], Blakely will probably do little to alter the jury's role in future criminal cases."
June 28, 2004
What the USSC was planning to do
With truly comical timing, the United States Sentencing Commission just today released its Federal Register Notice of proposed priorities and request for public comment for the amendment cycle ending May 1, 2005. The document actually provides some interesting insights into what the USSC had planned before the Blakely decision came down. Reading it now, however, feels a bit like reading a list of activities planned aboard the Titanic for the day after the iceberg was hit. (That's not a great methapor, but you get the point.)
Though this blog will cover many issues other than Blakely and its aftermath, in the short-term it is going to be hard to discuss much else especially since I expect there will be new and interesting post-Blakely developments on a daily basis. Sensibly, the person who operates Criminal Appeal has created a Blakely Blawg in an effort to keep track of Blakely developments. That Blawg is already rich with Blakely ideas and materials, most notably this link providing access to a memo from the folks at the First District Appellate Project in California which comprehensively discusses what Blakely might mean for California sentences under its Determinate Sentencing Law.
June 27, 2004
The Scope of Blakely's Impact
In a thoughtful piece quoting all the right folks, this New York Times article starts to guess at the number of criminal cases which may be affected by the Blakely decision. The article quotes Justice O'Connor's estimate from her Blakely dissent that 270,000 federal sentences over the last four year may be impacted; it also reports that John Kramer, a former executive director of the Pennsylvania Commission on Sentencing, has estimated that the decision could affect almost 90,000 state cases in the same period. In my view, the numbers discussed in the article are both understated and overstated.
The numbers are understated because they focus only on traditional sentencing cases. Based on broad and bold language in the majority's opinion, defendants and their lawyers may have grounds to argue that the principles and new mandates of Blakely extend to, and require modifications of, other parts of the criminal justice system in which judges make factual findings. The decision in Apprendi rippled in this way through some unexpected parts of the criminal justice system, although lower courts typically gave Apprendi a narrow reading in order to limit is ultimate impact. Lower courts may likewise try to read Blakely narrowly, but that will take some more work.
The numbers are overstated because it is extremely unlikely that every --- or even most --- previously sentenced defendants with viable Blakely claims will challenge previously imposed sentences. Some defendants with viable Blakely claims may have already completed or be close to completion of their sentence; many other defendants will not know they have a viable claim or will not be able to secure a lawyer to pursue a collateral appeal.
In the end, though, no matter how you add up the numbers, everyone is going to be busy with Blakely for quite some time.