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July 14, 2004

Thanks for visiting and helping

Many thanks to all the readers and suppliers of information. This site is on pace for a second day of over 3000 hits, and I've received just today over 100 Blakely related e-mails (many with important news and attached documents) and it's not yet even 4pm. I'm not complaining --- please keep sending me news and materials --- but it is now taking me longer than before to post new news and respond with thanks. In addition, I want to highly encourage anyone with questions or news to consider using the comments, which still seem a bit quiet given all the traffic.

July 14, 2004 in Blakely Commentary and News | Permalink | Comments (4) | TrackBack

The Challenges for SCOTUS

I argued below that the Supreme Court should take a Blakely case very soon in order to provide some additional guidance about what the Blakely decision means for federal sentencing. But, to really bring more order to our changed sentencing world, the next Blakely case would have to address an enormous number of complicated and important questions. For example:

1. Will Harris, which allows judges to find facts that aggravate minimum sentences, ultimately survive Blakely? (Recall that both Justices Scalia and Breyer are seemingly shaky votes in the (five vote) Harris majority.)

2. Will the Almendarez-Torres exception, which allows judges to find "prior conviction" facts that aggravate sentences, ultimately survive Blakely? (Recall that Justice Thomas is already on record saying he regrets his vote as part of the (five vote) Almendarez-Torres majority.)

3. Is Blakely retroactive, perhaps even before Apprendi was decided in 2000, or at least after Apprendi?

4. Does the Blakely rule apply in all sorts of other settings in state and federal systems when judges find facts that (functionally) aggravate punishment (e.g., ordering criminal forfeitures, revoking probation, administering drug courts)?

I doubt any single case raises all these questions (and I would be shocked if such a case comes before the High Court). But I know from my e-mail in-box that there are lots of courts, lawyers and academics who could add a dozen more consequential question to this list. We have now been litigating the meaning of Furman for more than 30 years and there are still open questions; the same will likely be true for Blakely. We may as well get the progeny started ASAP.

I encourage readers to use the comments to add other big questions needing big answers in the post-Blakely world.

July 14, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (6) | TrackBack

When and how will SCOTUS get involved?

As noted before, there is no doubt the Supreme Court will have to speak on Blakely issues. But now the big questions are not only when, but also how the Supreme Court will get involved. Helpfully, this fantastic piece at the SCOTUS Blog provides an insightful account of some of the possibilities, challenges and opportunites presented by different routes for Supreme Court review. I completely agree with Lyle Denniston's analysis that, as they did in Mistretta, the High Court is more likely to take a case from a district court than one of the appeals already in front of them. Judge Cassell's Croxford case seems like a good candidate, though there is also Judge Goodwin's Shamblin case and many other viable possibilities now. One wonderful legal realist question is whether the Justices will care, when deciding which case to take, about the underlying crime or just about whether the case presents the legal issues cleanly. I always thought it was significant that the Court used the Rodney King case as its vehicle to issue a pro-defendant ruling about departures in Koon v. US. See generally 76 Notre Dame L. Rev. 21 (2000).

In any event, I am very disturbed by those parts of the SCOTUS blog report that suggest there is no excitement about this issue in the halls of the High Court. As of this writing, at least 15 circuit judges have said on the record, "Review this matters quickly, Supremes!" (Judges Posner and Easterbrook and all the active judges of the Second Circuit.) Meanwhile, the Sixth Circuit may now be a completely guidelines-free zone after the decision today in Montgomery. And the Senate Judiciary Committee, showing I think a lot of respect for how the judicial branch can handle these matters, seemed to conclude yesterday that it would stay out of the scrum so that the Supreme Court could get the first word on what Blakely means for the federal system. The Supreme Court needs to act and act quickly if only to justify the faith that I think is now being shown by Congress in the judiciary's ability to handle it own mess.

I am on record as saying to Congress that it should "Go Slow." Now let me be clear on the record that I think the message to the Supreme Court should be three words: "Go really fast!"

More later about the challenges facing the High Court whenever they take on this matter.

July 14, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Federal Sentencing Guidelines, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

The 6th Circuit Speaks!!

I had heard rumors that other circuits were soon to join the fray, and now in US v. Montgomery, 03-5256 (6th Cir. July 14, 2004), the Sixth Circuit becomes the second federal circuit court to hold that Blakely invalidates the federal guidelines. Here's the key language from the opinion, authored by Circuit Judge Gilbert Merritt with Judges Martha Daughtrey and John Nixon (sitting by designation) in the unanimous panel, which has my brain racing (see extended commentary below):

[I]n order to comply with Blakely and the Sixth Amendment, the mandatory system of fixed rules calibrating sentences automatically to facts found by judges must be displaced by an indeterminate system in which the Federal Sentencing Guidelines in fact become "guidelines" in the dictionary-definition sense ("an indication or outline of future policy," Webster's International Dictionary (3d ed. 1963)). The "guidelines" will become simply recommendations that the judge should seriously consider but may disregard when she believes that a different sentence is called for....

The Sentencing Reform Act of 1984, which gave rise to the present determinate sentencing system, does not by its terms require a mandatory, rule-bound system calibrating sentences to judicially-found facts. The statutory language would have allowed the creation of an indeterminate system in which the guidelines are simply considerations for Article III federal judges to access before passing sentence. The most important provision of the statute, section 3553(a) of Title 18, simply says that "the court, in determining the particular sentence to be imposed, shall consider" a large number of listed factors like the "seriousness of the offense" and the "characteristics of the defendant," only one of which is the "kind of sentence and the sentencing range established" by the Sentencing Commission. In addition to the various factors that a judge should "consider" as listed in Section 3553(a), the next sub-section counsels the judge to consider the "aggravating or mitigating circumstances" of the particular case. The Sentencing Commission itself interpreted the statutory language and converted this advisory language into the kind of mandatory rules of a determinate system of sentencing that the Supreme Court has now invalidated. In light of Blakely, and the language of the enabling act itself, a district judge should no longer view herself as operating a mandatory or determinate sentencing system, but rather should view the guidelines in general as recommendations to be considered and then applied only if the judge believes they are appropriate and in the interests of justice in the particular case.

More huge news and more commentary when I can digest it all.

UPDATE: Like Blakely itself, this brief decision creates, at least for me, a lot more questions than it answers. My quick reaction is that the Sixth Circuit is ruling that the Commission-created administrative guidelines are unconstitutional (as applied?) because they require impermissible judge fact-finding, but that the Sentencing Reform Act as a whole survives Blakely because the statute itself does not require judge fact-finding. (Of course, the shrewd reader might notice this is an inverted perspective on why Easterbrook and the Fifth Circuit think the Commission's guidelines remain constitutional!) The result, then, is to convert the guidelines into just advisory recommendations to the judge. Neat result, but a head-scratcher for a number of reasons:

First, the legislative history of the SRA shows that Congress contemplated and rejected the creation of merely "voluntary" guidelines. See Mistretta, 488 U.S. at 367 (noting that the "Judiciary Committee rejected a proposal that would have made the sentencing guidelines only advisory and citing S.Rep. No. 98-225 (1983) at p. 79). Ergo, I do not see how the Sixth Circuit's reading of the SRA fits with its legislative history. UPDATE ON THIS POINT: A wise colleague noted that there is support in the House version of legislative history of the SRA for making the guidelines more advisory and less presumptive, and thus it might be arguable that you are in fact being faithful to the SRA to conclude, after Blakely knocks out the mandates, that an advisory system should be left standing.

Second, the Sixth Circuit asserts:

"This solution to the immediate problem in federal sentencing is not inconsistent with the alternative position by the Deputy Attorney General in his memo to federal prosecutors, a memo forwarded to the federal judiciary on July 7, 2004. ("In that event [when the guidelines may not be applied as mandatory rules], the government should urge the court to impose sentence, exercising traditional judicial discretion, within the applicable statutory sentence range" with the "recommendation in all such cases ... that the court exercise its discretion to impose a sentence that conforms to a sentence under the Guidelines....")"

But I think the effect, if not the intent, of the Sixth Circuit's ruling is that the federal guidelines CANNOT BE IMPOSED IN ANY CASE in the Sixth Circuit, even if the case raises no Blakely problems or the defendant waives his Blakely rights! I am certain this is not DOJ's view of the impact of Blakely. UPDATE ON THIS POINT: On a second read, I think it is arguable that this opinion is only meant to apply Blakely-problematic cases, but who knows.

FINAL POINTS FOR NOW: This was a very peculiar factual setting for making a big Blakely ruling, not to mention a panel which is, I think it is fair to say, not wholly represenative of the Circuit as a whole. I think the spelling in the Sixth Circuit is "en banc," no?

This is still a very quick reaction to a very opaque case. But I am starting to think the post-Blakely world actually looks a lot like an M.C. Escher painting.

July 14, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (11) | TrackBack

Thoughts and holdings on Blakely retroactivity

Figuring out what Blakely means for on-going cases is, of course, critically important for courts and practitioners right now. But also extremely consequential is whether Blakely might have retroactive application. Though the Supreme Court limited the retroactive application of its Ring holding in Schriro on the same day it decided Blakely (background here), in that case there was no question about the application of the proof beyond a reasonable doubt standard (see footnote 1 of the Court's opinion); Schriro only concerned retroactive application of the jury right. Consequently, a number of commentators have astutely noted that Schriro does not conclusively foreclose retroactive application of Blakely. Also recall that Justice O'Connor stated in her Blakely dissent that "all criminal sentences imposed under the federal and state guidelines since Apprendi was decided in 2000 arguably remain open to collateral attack." Blakely, slip. op. at 11 (O'Connor, J., dissenting).

Despite viable arguments about Blakely's retroactivity, most commentators take the (slightly cynical) view that courts will seek to limit retroactivity simply because the consequences of giving Blakely retroactive effect could be so extreme. (Recall Justice O'Connor's footnote suggesting that well over 200,000 cases in the federal system alone could be impacted if Blakely was just made retroactive back to when Apprendi was decided in 2000.) I generally agree with this legal realist perspective that courts, worried about a flood of habeas petitions, will try to limit the reach of Blakely (although, of course, the same logic also supported the widely held belief that the Supreme Court would never extended Apprendi to guideline enhancements in the Blakely decision itself).

Of course, last week we already had evidence of court efforts to limit the retroactive reach of Blakely when the Eleventh Circuit, In re Dean, held that Blakely cannot form the basis for authorizing a second or successive habeas filing (background here). And I have now come across another example of a court speaking to Blakely's possible retoractivity. In State v. Burch, 2004 WL 1557822 (Minn. App. July 13, 2004), an unpublished intermediate appellate court state case, we get this noteworthy discussion of the retoractivity issue:

Although Blakely, which is based on Apprendi v. New Jersey, 530 U.S. 466 (2000), may have implications for upward departures from the Minnesota Sentencing Guidelines imposed after the Apprendi decision, appellant has failed to make a showing that Blakely will affect sentences, such as his sentence, that were final before Apprendi was decided. This court has held that Apprendi does not apply retroactively on collateral review, including postconviction. State v. Meemken, 662 N.W.2d 146, 150 (Minn.App.2003). See Schriro v. Summerlin, 72 U.S.L.W. 4561, 4563 (U.S. June 24, 2004) (stating that the holding of Ring v. Arizona, 536 U.S. 584 (2000), a case which reinforces the Apprendi requirement that a jury find any aggravating facts that lead to a greater sentence, is properly classified as procedural, and therefore does not apply retroactively to cases already final on direct review). Therefore, absent any authority that Blakely applies to appellant's sentence, we decline to address this issue.

Importantly, though this decision refuses to consider the applicability of Blakely to pre-Apprendi cases, it also states that Blakely "may have implications for upward departures from the Minnesota Sentencing Guidelines imposed after the Apprendi decision."

July 14, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (20) | TrackBack

End of day news and commentary

The Blakely news and corresponding media coverage is growing as everyone figures out how big this story is. The Wall Street Journal (which unfortunately does not provide content on-line without a subscription) may have on Wednesday another in its series of thoughtful articles about the Blakely fall out. In addition, here's a brief (and surely incomplete) run-down of other noteworthy Blakely news.

Federal Developments: this AP story reports that U.S. District Judge Stewart Dalzell (ED Pa.) sentenced Frederick Leach to a 15-year term in a drug case instead of the guideline recommended 30-year term citing Blakely; Martha Stewart's sentencing is scheduled for Friday though U.S. District Judge Miriam Goldman Cedarbaum has not yet ruled on Stewart's lawyers' request to declare the federal sentencing guidelines unconstitutional -- this thoughtful article details the strategic challenges Stewart faces in deciding whether to speak at the sentencing.
MORE: This article dicusses Blakely issues in a Virginia District Court; this article reports that U.S. District Judge Michael J. Reagan of SD Ill. has continued all his sentencings to September or October; this article reports that U.S. District Judge John Manos has concluded that "the Blakely case does not affect federal law"; and this article quotes Deb Phillips of the U.S. attorney's office in Nashville saying, ''Right now, [Blakely will] just be a blip.''

State Developments: according to this article, Tennessee Criminal Court Judge Rebecca Stern sentenced a man convicted of raping an 82-year-old woman to a minimum 25-year sentence on Monday and said her sentence was limited by the Blakely ruling; and according to this article, Washington State Superior Court Judge Richard Strophy reduced by 19 months the sentence of a convicted murderer Monday relying on Blakely.

Other Commentary: Jason Hernandez over at the Blakely Blog provides this thoughtful run-down of issues raised during today's Senate hearing; Professor Kyron Huigens over at Punishment Theory continues his analysis of the problems he has with Justice Breyer's metaethics.

My own two cents: I found the Senate hearing very heartening with its consistently thoughtful and balanced discussion of many tough issues and its hints that at least a few Senators might want to re-think some major elements of the existing federal sentencing scheme. In the debate over the current "chaos" and the need for a quick fix, I continue to think it is very signficant that the USSC asserts "that a majority of the cases sentenced under the federal guidelines do not receive sentencing enhancements that could potentially implicate Blakely." USSC Written Testimony at p.2 (emphasis added). Finally, since DOJ representative Willaim Mercer's suggested that the time for legislative action might be in August, I am fearful that DOJ, if it feels that judges are low-balling sentences post-Blakely, will return to the Hill later this summer to seek a pro-prosecution "fix."

July 14, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in Legislatures, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (71) | TrackBack

July 13, 2004

Revised King-Klien Beyond Blakely

I am pleased to be able to provide here a revised and updated version of the stunningly comprehensive (still draft) article by Professors Nancy J. King and Susan R. Klein concerning the post-Blakely world entitled "Beyond Blakely." This draft incorporates the significant circuit court rulings this week.
Download revised_kingklein_beyond_blakely_july_13.pdf

July 13, 2004 in Blakely Commentary and News, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

What the....? (aka The 9th Circuit mumbles)

Late yesterday I noticed this Ninth Circuit "Order of Remand" in US v. Epis, which cites Blakely. Here's the full text of the order:

This cause came on for hearing before the court on June 16, 2004. The Supreme Court of the United States has now granted certiorari in Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003), cert. granted (U.S. June 28, 2004) (No. 03-1454), which is a related case dealing with the growing and use of marijuana for medicinal purposes. This court now remands this case to the district court for reconsideration of the judgment following the decision by the Supreme Court in Raich. If, after considering any application of Raich to this case, the district court determines that Epis’s conviction should remain in tact, the district court should then proceed to re-sentence Epis in a manner consistent with the Supreme Court’s decision in Blakely v. Washington, 542 U.S. ___ (2004) 2004 WL 1402697 (June 24, 2004). The panel of this court retains jurisdiction pending reconsideration by the district court.

I did not post this decision because I came to the conclusion that this was just one of a number of cases I've seen (especially from state courts) remanding for reconsideration in light of Blakely. See, e.g., State v. Beaulieu, 2004 Minn. App. LEXIS 774 (July 6, 2004). However, a reader from the Ninth Circuit wrote in to say this opinion shows that "The Ninth Circuit appears to have weighed in, albeit somewhat cryptically, on Blakely on the same side as the Seventh Circuit." When I wrote back to say that I was reading this text narrowly as not weighing in on the merits, the reader responded:

"You are not alone in that [reading], since it [remanded] without any reasoning or explanation. But given the stare decicis rule in this circuit, it is hard to assume that since it is a published decision and it clearly directs the district court to apply Blakely in sentencing it does not have the same effect on all sentencing decisions in the circuit until overruled by either the court en banc or the Supreme Court. On the other hand, who can make much sense out of the whole Blakely morass?"

Can the smart folks out there with your Federal Courts books open help us figure this one out??

UPDATE: In the comments, the view seems to be that this is not a ruling on the merits or of any defined consequence. It also appears that a more definitive discussion of Blakely should be coming from the Ninth Circuit soon.

July 13, 2004 in Blakely in Appellate Courts, Federal Sentencing Guidelines, Sentences Reconsidered | Permalink | Comments (5) | TrackBack

A means for Supreme Court (re)consideration

I knew I saved my old edition of Hart and Wechsler's The Federal Courts and The Federal System for a good reason. It makes for a great little read on the certification procedure employed yesterday by the Second Circuit. In my yellowed Third Edition at pp. 1836-40, the section concludes with this choice quote from Wright et al.: "The sooner [abolition of certification] is accomplished by statutory amendment, the better."

Meanwhile, I now have word of another development that calls for pulling out the history books. Today Professor Rory Little, new counsel for the State of Washington, has told me about the filing of an "Application for Extension of Time to File a Petition for Rehearing on Behalf of the Respondent State of Washington." In other words, the State of Washington has plans to seek Rehearing of the original Blakely decision, even though the US Supreme Court apparently has not substantively granted a merits rehearing petition in nearly 50 years.

I have attached at the bottom of this post a pdf version of the petition, and here's the key part of the substantive argument:

Washington candidly recognizes that rehearing in this matter is legitimately viewed by many as unlikely. However, we believe the case merits the fullest possible attention at this juncture. This Court seems certain to soon grant merits hearings to other jurisdictions on the validity of their own sentencing regimes under Apprendi and the reasoning in Blakely.... We do not believe that the State of Washington fairly should be compelled to suffer the first blow as other jurisdictions continue to argue the implications of this Court’s closely-decided cases in this area. Rather, Washington should be permitted to participate in what will apparently be the definitive re-argument of the issues.

In dialogue with me about this effort, Rory thinks the Court should ultimately grant rehearing of Blakely itself as a matter of "fair Federalism." The idea is based on the sensible notion that, perhaps quite soon, the High Court is going to have a major "Apprendi day" in which the first principles of Apprendi will be re-examined. Says Rory: "If they are going to allow every other jurisidiction to argue that their regimes are distinguishible, why should Washington State have been made to walk the plank (so to speak) alone? Perhaps no one will change their mind. But if one did, Washington will have suffered a very unfair blow. The next arguments will NOT be simply about 'are the guidelines constitutional under Blakely.' They will inevitably and ineluctably go quickly to 'what is the bedrock constitutional theory that is operating here?' Rehearing of the case that stimulated that path is not just appropriate, but fair."
Download extension_rehearing_petition.pdf

July 13, 2004 in Blakely in the States, Blakely in the Supreme Court, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

Another helpful (future FSR) resource

I have just received from Professor Stephanos Bibas — who, to my knowledge, is the first law professor ever to have his AALS directory entry cited in a Supreme Court opinion, see Blakely, slip op. at 16 — a draft of the article he is preparing for the forthcoming special issue of the Federal Sentencing Reporter covering Blakely. Entitled "Blakely’s Federal Aftermath," it's another stunningly impressive effort to take stock of the post-Blakely federal sentencing landscape. Here's a key introductory paragraph noting the paper's themes and coverage:

Blakely raises far more questions than it resolves. In this limited space, I will try to address five clusters of issues. Part I will discuss how far Blakely is likely to go, and in particular whether it reaches the Federal Sentencing Guidelines. Part II addresses a host of transitional issues, especially what is left of the Federal Guidelines if Blakely applies to them. Part III discusses possible Blakely fixes or patches. Part IV considers briefly how plea bargaining might look different in a post-Blakely world. Finally, Part V muses on some of the fascinating jurisprudential issues raised by Blakely, such as the tension between formalism and pragmatism and the role of 18th-century history in our 21st-century world.

Stephanos has noted this "draft is preliminary," though "people are free to cite it." He welcomes suggestions for additions and changes in the next few weeks before the Federal Sentencing Reporter issue is ready to goes to press. Here's the document in pdf form:
Download bibas_blakelys_federal_aftermath.pdf

July 13, 2004 in Blakely Commentary and News, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Written Senate testimony and comments

As promised earlier, I can and will now post here copies of the written Senate testimony that I have in hand which may not be otherwise available. In addition, as of this writing, you can find (only) the testimony of DOJ representative Bill Mercer and the statement of Senator Orrin Hatch on the Judiciary's Committee's official site here. I encourage readers to use the comments to discuss what they might have thought was especially noteworthy in these proceedings (or anything I missed in my summaries). I will also post additional testimony as I receive it and it is not otherwise available 9and recall you can access my testimony here).

Here's Judge Paul Cassell's written testimony (which has the most comprehensive account of Blakely coping efforts by district courts that I've seen):
Download cassell_final_blakely_senate_testimony.pdf

Here's Ronald Weich's written testimony (which thoughfully details key considerations for thinking about short-term and long-term congressional fixes):
Download final_ron_weich_senate_testimony.doc

AND NOW I also discovered that the US Sentencing Commission has posted here the joint testimony of Commissioner John R. Steer and Judge (and Commissioner) William K. Sessions, III.

AND NOW Jason Hernandez over at the Blakely Blog has pdf versions of the testimony of Rachel Barkow and Alan Vinegrad here.

UPDATE: It now appears that all of the testimony (in html form) can now be found on theJudiciary's Committee's official site here.

July 13, 2004 in Blakely Commentary and News, Blakely in Legislatures, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Panel 2 Senate hearing highlights

After introductions, the Senate hearing's second panel got off to a fiery start by the usually fiery Professor Frank Bowman. He effectively hightlighted that Blakely is not the real problem, but a symptom of "profound, on-going, systemic dysfunction" in the federal sentencing system. He then stressed that there really is turmoil in the federal courts and that all the rapid court rulings are a sign of the coming "national judicial trainwreck." Frank said the new prospect, after the Fifth and Second Circuit decisions, of rapid Supreme Court consideration of Blakely's impact in the federal system changed his view about whether a quick congressional fix was needed now. But he also (rightfully in my view) highlighted that even a quick decision from the Supreme Court would not likely solve the uncertainty in the courts now or the underlying problems with the federal sentencing system.

Professor Rachel Barkow followed by stressing her concerns about the historic place of juries in the criminal justice system. She criticized the "Bowman proposal" (background here) for being a short-term fix that does not safeguard the place of juries, but only safeguards the place of the existing guidelines. She suggested an alternative short-term fix would be to make the guidelines simply advisory, and she advocated a long-term fix in which there is an effort to identify a short list of core aggravating circumstances that for all cases should be treated as distinct elements leading to full trial rights.

Ronald Weich highlighted the challenge that Blakely creates for effectively balancing competing concerns of fairness in sentencing, and he noted that his written testimony highlighted a range of fairness worries in federal sentencing even before the Blakely ruling. He then suggested Congress should do nothing in the short term, but if feeling compelled to do something, the only thing Congress should consider would be to make the federal guidelines simply advisory (which, he highlighted, would only require changing only one provision of the current US Code).

Alan Vinegrad urged short-term and long-term responses, and said some short-term action may be needed in part bacause an additional decision by the Supreme Court would not alone stem the on-going turmoil. Without specifying a short-term fix, he then outlined in some detail his approach to a long-term fix. But Senator Jeff Sesssions quickly followed up by suggesting that his proposed long-term fix was an effort to just "split the baby in half" which might not be viable. Alan, in turn, said he thought such compromises were exactly what gets done in the halls of Congress.

In questions, Senator Jeff Sesssions (who was now presiding) did his very best to argue that the Blakely decision ought to be reversed and he even predicted that "Justice O'Connor's view would ultimately prevail." He thereafter engaged in a dialogue with all the witnesses about deeper problems with the federal guideline system, and then came even closer to calling Justice Scalia an activist judge in a loaded question to (former Scalia clerk) Rachel Barkow concerning whether Justice Scalia would strike down any sentencing system he did not like. Senator Sesssions also indicated that he thought the statutory "25% rule," which defines the limits of the federal sentencing ranges under the current guidelines, might too tightly limit judicial discretion. Frank Bowman jumped in to stress his view that this "25% rule" is a significant structural impediment to meaningful federal sentencing reform.

July 13, 2004 in Blakely Commentary and News, Blakely in Legislatures, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Panel 1 Senate hearing highlights

The Senate hearing's first panel just ended, and it is all so interesting and thoughtful I'm not sure I can summarize it effectively. This is a "must-see" event now and in repeats (at least for sentencing geeks like me). The opening statements by Senators Hatch, Leahy, Kennedy and Sessions were rich and generally balanced. And all the panel speakers were effective in spotting the many challenging issues post-Blakely, although no firm solutions were put forth.

There did seem to be, however, a general consensus that, in Judge William Sessions' words, the "sky is not falling." Commission Vice-Chair Steer stated that, based on an examination of USSC data, he thought "only a minority" of all federal cases had Blakely problems. And other witnesses stressed the many coping efforts that courts and prosecutors are employing.

All five witnesses counseled caution in any congressional response, and Leahy's first question clarified that noone on the panel was asking for immediate congressional intervention. However, Hatch's first question suggested he thinks there might be a "crisis" that needs to be addressed. And Senator Jeff Sessions asserted that Blakely was the most consequential case in American criminal history, which was creating a "chaotic" situation. (Senator Sessions was especially critical of the Supreme Court's Blakely ruling, and he seemed to come amazingly close to calling Justice Scalia an activist judge!)

But all the witnesses stressed in responses that a short-term fix was not essential, and perhaps not effective, to deal with any perceived "crisis." DOJ representative William Mercer stressed that the problems created by Blakely really was a case-by-case story, and he suggested that August might be the time when the dust had cleared enough to figure out whether a fix was necessary. (Also, DOJ's Mercer got a nice bit of lashing from Leahy for inconsistencies between DOJ's advocacy of the Feeney Amendment and its claim now that the independency of the USSC distinguishes the federal guidelines from the state guidelines struck down in Blakely. And then Kennedy started his question period by lamenting the way the Feeney Amendment was passed. He then forcefully asked Mercer if he supported the judge-specific reporting requirements in that legislation while suggesting that this provision should be re-considered. What goes around come around!)

Interestingly, Senator Durbin made a very nice capital punishment analogy at the start of his questioning: he highlighted that Illinois Governor Ryan's death penalty moratorium lead to a healthy re-thinking of capital punishment practices, and then suggested that Blakely can likewise lead to a healthy re-thinking of 20 years of federal guideline sentencing. He asked whether it was time for "a fresh look at the whole concept" of sentencing guidelines in the federal system, and wondered whether we "could get the the bottom of Blakely" without a complete re-examination of fairness in federal sentencing.

Finally, I got to hear Senator Hatch enter my co-authored written testimony into the record. Cool!

July 13, 2004 in Blakely Commentary and News, Blakely in Legislatures, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Line-up cards are now complete

At the Senate Judiciary Committee's site here, you can find the complete list of witnesses for today's hearing (as well as the webcast link). Here's a scorecard so you can tell the players:

Witness List for Hearing before the Senate Committee on the Judiciary on "Blakely v. Washington and the Future of the Sentencing Guidelines" Tuesday, July 13, 2004 Senate Dirksen Office Building Room 226 at 10:00 a.m.

Panel I:
The Honorable Bill Mercer, United States Attorney, District of Montana, Helena, MT
The Honorable John Steer, Vice Chair and Commissioner, United States Sentencing Commission, Washington, D.C.
The Honorable William Sessions, Chief United States District Judge, District of Vermont, Burlington, VT, Vice Chair and Commissioner, United States Sentencing Commission, Washington, D.C.
The Honorable Lawrence L. Piersol, Chief United States District Judge, District of South Dakota, President, Federal Judges Association, Sioux Falls, SD
The Honorable Paul G. Cassell, United States District Court Judge, District of Utah, Salt Lake City, UT

Panel II:
Frank Bowman, Professor of Law, Indiana University Law School, Indianapolis, IN
Rachel Barkow, Assistant Professor of Law, New York University School of Law, New York, NY
Ronald Weich, Esq., Zuckerman, Spaeder LLP, Washington, D.C.
Alan Vinegrad, Esq., Former United States Attorney, Covington & Burling, New York, NY

Apparently C-Span 2 is showing the debate over the marriage amendment live rather than this hearing, but I think the webcast will be just as good for those near a computer.

Grab your popcorn, the show's about to start!

July 13, 2004 in Blakely in Legislatures, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Now on deck...

Today's the day for the Senate Committee on the Judiciary's hearing on “Blakely v. Washington and the Future of the Federal Sentencing Guidelines.” Lots of background details about the 10am hearing (and how to hear it live) are here and here and here and here. The Committee's offical site does not yet have links to testimony, though you can access written testimony I submitted with my co-authors here and I will post other testimony I have received later today.

And while we're talking baseball, here's an article noting Utah's Chief District Judge Dee Benson's view that unless the federal guidelines are overturned by the high court, he will consider them valid. As the article details, apparently Judge Benson has cast the guidelines in the role of the Florida Marlins, with Judges Cassell and Posner and others finding the guidelines unconstitutional becoming the Chicago Cubs. The sure thing, according to Judge Benson, sometimes disappears:

Just last October, thousands of Chicago Cubs fans were certain of their team's first World Series appearance in [58] years, with a mere five outs to make against the Florida Marlins. ... Then one of the Cubs' own fans interfered with the catch of a foul ball, and the unraveling began. As Mark Twain observed in 1897 that 'the reports of my death are greatly exaggerated,' the sentencing guidelines may similarly defy present expectations of their impending demise.

July 13, 2004 in Blakely in Legislatures, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Can the Kansas system work for the feds?

Because it's late, readers will have to make up their own Wizard of Oz jokes as we consider the virtues of following the yellow brick road of sentencing reform to Kansas. The New York Times today has an article suggesting "Justices' Sentencing Ruling May Have Model in Kansas." In a similar vein, The National Association of Criminal Defense Lawyers' (NACDL) has sent a letter to Senators Hatch and Leahy (available here thanks to our friends at TalkLeft), in which it is suggested that the Kansas approach of having a bifurcated trial to allow jury consideration of sentencing enhancements is the best way to give meaning to the constitutional rights announced in Blakely. I'll be interested to hear if the Kansas approach gets discussed at any length during the Senate Judiciary Committee hearing later today.

July 13, 2004 in Blakely in Legislatures, Blakely in the States, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (2) | TrackBack

Monday Recap: Jurisprudential Home Run Derby

With so much happening on Monday -- a dozen posts without covering all I heard -- I thought a quick recap of highlights might be of use. Though I won't be able to equal the play-by-play of the ESPN folks on during the MLB Home Run Derby, I will try to pepper this recap of the jurisprudential moonshots with a little helpful commentary.

1. The day started with lots more news of interesting developments in various federal district courts (see here and here and here). Not included in earlier reports was the news I received from DC that District Judge Ellen Huvelle in US v. Alston-Graves held the Guidelines "invalid" per Blakely and also held that enhancements are not severable from the rest of the Guidelines. And I heard from a reporter that EDNY District Judge Jack Weinstein convened a federal jury trial solely to decide on a defendant's sentence. It would seem that the federal guidelines are being declared unconstitutional in many district courts, with a wide variety of remedies being explored.

2. Then, around mid-day, the Fifth Circuit issues its opinion in US vs. Pineiro holding the federal sentencing guidelines constitutional (details here). The reasoning tracks Judge Easterbrook's points in dissent from the Seventh Circuit's contrary holding in US v. Booker from Friday (details here), stressing the distinctions between the statute-based guideline scheme at issue in Blakely and the administrative-agency-based guideline scheme in the federal system. Among the interesting features of Pineiro is that, factually, the defendant could claim great prejudice from not having respected his "Blakely right" to jury findings beyond a reasonable doubt: his enhancements were based on the sentencing judge's drug-quantity fact-finding after a jury refused to make the same findings at trial and on the judge's questionable leadership role finding based on evidence that "was conflicting on many issues."

3. Not missing another chance to be first, Judge Paul Cassell of Utah then issued another opinion in US v. Croxford to address final arguments the government raised in defense of the guidelines (details here), and in this opinion Judge Cassell was the first to respond directly to Judge Easterbrook's and the Fifth Circuit's efforts to find Blakely inapplicable to the federal guidelines. Judge Cassell reaffirmed his initial declaration of the guidelines as unconstitutional, and in so doing also became the first to cite this blog in a written opinion (see footnote 33). He also, I believe, gets credit for being the first to describe the US Sentencing Commission as an "odd duck."

4. Appropriately batting clean-up in this order, the Second Circuit closed the day by handing down, in banc, US v. Penaranda, which sought to clean up the federal mess by certifying three questions about Blakely's reach to the Supreme Court (details here). In addition to taking a slight swipe at Judge Cassell for heavy reliance on the Blakely dissents in his Croxford opinions (see footnote 6), the Second Circuit decision became the first circuit court opinion to cite this blog (see footnote 9). More importantly, the Second Circuit makes in Penaranda a compelling argument for swift action by the Supreme Court. It notes that thousands of past, present and future federal cases are in doubt after Blakely, and urges "an expedited briefing and hearing schedule, in order to minimize, to the extent possible, the impending crisis in the administraton of criminal justice in the federal courts."

Helpfully, many of these developments (and even some others) are reviewed in this Washington Post article.

July 13, 2004 in Blakely Commentary and News, Federal Sentencing Guidelines | Permalink | Comments (1) | TrackBack

July 12, 2004

Certified for great commentary

Not surprisingly, the Second Circuit's decision in US v. Penaranda to dust off 28 U.S.C. § 1254(2) to certify question to the Supreme Court has generated thoughtful buzz in the blogsphere. Read here the thoughts of Eugene Volokh at The Volokh Conspiracy or those of Marty Lederman at the SCOTUSBlog or those of Larry Solum at Legal Theory. Marty's commentary is especially insightful for noting that "in the certified questions, it does not appear that the court has asked the Supreme Court to resolve the statutory implementation, or 'severability,' question in the event it rules that the Guidelines are constitutionally infirm." (I have noted challenging questions surrounding severability here.)

For all those academics and law students whose draft articles and notes may not survive Blakely, perhaps we can take comfort that the lower courts are doing their best to create great new topics for commentary.

July 12, 2004 in Blakely Commentary and News, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

The 2d Circuit Speaks (in banc)!!

Okay, just when I thought the story couldn't get any better, we get this capper on an incredible day. The Second Circuit Court of Appeals, in US v. Penaranda has issued an opinion, in banc, concerning Blakely. How does it come down, you ask. It doesn't -- rather the Court has certified three questions to the Supreme Court of the United States!!!

That's right everyone, it's time to get those Federal Courts textbooks off the shelf because the Second Circuit has fired the biggest jurisprudential firework to date. I've not yet had a chance to consume the whole opinion, which can be downloaded here or obtained through a few clicks from this site, but its looks like another incredible chapter in this evolving story. In addition, I am very proud to say that the Second Circuit also is the first court to give me the honor of seeing this blog cited (see footnote 9).

Download 2d_circuit_penaranda.pdf

Here's how, at the close of the opinion, the court articulates the three certified questions:

To afford the Supreme Court an opportunity to adjudicate promptly the threshold issue of whether Blakely applies to the federal Sentencing Guidelines, we therefore certify the following three questions (the first pertains to both cases pending before us, the second to Penaranda’s case, and the third to Rojas’s case):

1. Does the Sixth Amendment permit a federal district judge to find facts, not reflected in a jury’s verdict or admitted by a defendant, that form the basis for determining the applicable adjusted offense level under the federal Sentencing Guidelines and any upward departure from that offense level?

2. In a case where a jury has convicted a defendant of possessing with intent to distribute five kilograms or more of cocaine and one kilogram or more of heroin, does the Sixth Amendment permit a federal district judge to determine, under the federal Sentencing Guidelines, the quantity of drugs for which the defendant is responsible and upon which his base offense level and corresponding sentencing range will be calculated, under U.S.S.G. § 2D1.1?

3. In a case where a defendant has pled guilty to conspiring to distribute five kilograms or more of cocaine, does the Sixth Amendment permit a federal district judge to determine, under the federal Sentencing Guidelines, (a) the quantity of drugs for which the defendant is responsible and upon which his base offense level and corresponding sentencing range will be calculated, under U.S.S.G. § 2D1.1, (b) the applicability of a two-level enhancement to the base offense level for carrying a gun in connection with the offense, under U.S.S.G. § 2D1.1(b)(1), and (c) the applicability of a three-level managerial role enhancement under U.S.S.G. § 3B1.1(b)?

P.S. Those of you who might think the use of "in banc" (rather than "en banc") is a typo need to brush up on the collective writings of my former boss, Judge Jon O. Newman.

July 12, 2004 in Blakely in Appellate Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (24) | TrackBack

Judge Speedy — I mean Cassell — speaks again

Though I will let someone else call him Superman, I will say that Judge Cassell is faster than a speeding bullet (or should I say faster than a speeding modem). Though I find it hard to believe, Judge Paul Cassell has already issued another opinion in US. v. Croxford (background here and here), in which the Judge responds to the Seventh Circuit's Booker decision (background here) from this past Friday, and he also reponds to the Fifth Circuit's decision in Pineiro (background here), which was handed down only a few hours ago!!
Here's a link to access all three Croxford decisions.
UPDATE: My quick review of the opinion yesterday missed the exciting news that this blog, and the article by Professors King and Klein available here, are cited in footnote 33. Cool.

I can also report that Judge Cassell is yet another all-star sentencing mind slated to speak at tomorrow's Senate Judiciary Committee hearing. Not only is that good news because the Senate should hear from as many bright, thoughtful persons as possible, but it also means that I can hope to catch up on my required Judge Cassell reading while he's busy with the Senators.

July 12, 2004 in Blakely in Sentencing Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack