July 11, 2004
More big Blakely news from the south
News must move slowly from south to north, because only this weekend did I get details on a ruling apparently made Wednesday by U.S. District Judge Walter S. Smith Jr. of the Western District of Texas in US v. Rucker. According to a news report forwarded to me, Judge Smith "held that federal sentencing guidelines are not constitutional, adding that sentence enhancements as applied under the guidelines violate a defendant's Sixth Amendment right to a jury trial." And, according to this news report, Smith issued three sentences in Rucker: one for each contingency if "the Blakely case does not apply to federal sentences, as Assistant U.S. Attorney Jake Snyder argued Wednesday; if Blakely does apply and the sentencing guidelines ultimately are held to be constitutional; and if the sentencing guidelines are ruled unconstitutional by higher courts."
Apparently in the Rucker case, the "relevant conduct" introduced at sentencing bumped Rucker's offense level on the guidelines from 9 to 30. Under his "triple sentence format," according to this news story, "Smith sentenced Rucker to 88 months if Blakely does not apply to federal guidelines; 10 months if it does apply and the guidelines are found to be constitutional; and to seven years in prison using Smith's discretion if the guidelines are ruled to be unconstitutional." The word is that Judge Smith expects to issue a written ruling early this coming week.
In other news from Texas, this article discusses the efforts by U.S. District Judge W. Royal Furgeson to deal with Blakely in a case involving a store owner who committed thousands of dollars in mail fraud. According to the article, Judge Furgeson apparently announced he wanted to put "aggravating factors mentioned in the defendant's pre-sentence report — including allegations he obstructed justice — to a jury. The judge also offered an alternative: 'To resolve this, you give me a waiver (of jury trial), and we'll proceed.'" The article also notes that San Antonio's three other federal judges said they would issue dual sentences — one under the federal guidelines and a backup not incorporating them — in the event the guidelines are thrown out.
In other news from southern states, here's a link to a thoughtful news story about the efforts being made in the Louisiana federal courts to deal with Blakely. It reports that U.S. District Judge Frank Polozola is issuing dual sentences, but in a drug sentencing he simply imposed the same sentence of "10 months in prison -- not just once, but twice."
Deciphering Blakely for the states
The coming week -- with the Senate Judiciary Committee hearing on Blakely scheduled for Tuesday and additional federal court rulings sure to come and come fast -- will likely focus much attention on what Blakely means for federal sentencing. But what Blakely means for state sentencing systems is no less important (more than 90% of all criminal convictions are in state courts) and no less dynamic (state sentencing structures are interestingly diverse and will be impacted by Blakely in interestingly diverse ways).
Fortunately, we can be confident that there are a lot of fantastic projects and minds working on the state story. For example, the great folks at the Vera Institute of Justice's State Sentencing and Corrections Program have launched an initiative to assist state officials who are grappling with Blakely and its aftermath. As reported to me in an e-mail and detailed on its website:
SSC has already begun to provide advice, research, and other assistance to officials in states that are affected by the ruling. Later this summer, Vera will convene a major national meeting, providing a necessary forum for state officials to strategize together and learn from national experts in the sentencing field. Vera will also issue a series of publications designed to provide the information and resources policy makers need to craft short- and long-term response to Blakely.
In addition, I have heard that the great folks at Justice Strategies are also hard at work helping states make sense of Blakely. Justice Strategies has recently worked in conjunction with Families Against Mandatory Minimums on two great recent (pre-Blakely) reports about state sentencing developments -- a report about Arizona's sentencing laws avaliable here and a report about nationwide state sentencing developments available here. Both of these documents, and really everything produced by FAMM and Vera's SSC, should be required reading for everyone involved in sentencing reform.
Now showing on the Biography Channel...
For those who like knowing more about the people behind the news, this post is for you. First, here's an article about Judge Paul Cassell whose opinion in US v. Croxford has framed the early debate over what Blakely means for the federal sentencing system. You can also access his biography here.
Second, according to this post at the SCOTUS Blog, Deputy Solicitor General (and my law school colleague) Paul Clement has been appointed Acting Solicitor General following Ted Olsen's retirment as SG. Here's an article about Paul Clement, who will likely play a major role in determining when and how the Supreme Court rules on what Blakely means for the federal sentencing system.
Professors Nancy J. King and Susan R. Klein have authored a stunningly comprehensive (draft) article concerning the post-Blakely world entitled "Beyond Blakely." Here's how they describe the scope of their efforts:
In Parts I and II of this article, we address how Blakely has affected the Federal Sentencing Guidelines, and how assistant U.S. attorneys, federal public defenders, and district and appellate court judges might proceed in a post-Blakely world. In Part III, we discuss Blakely challenges raised in cases on direct and collateral review. Finally, in Part IV, we collect some of the various options for reform open to Congress.
In sharing this article with me now, Professors King and Klein have stressed that this draft is a "work-in-progress" which they "are anxious to share with anyone who may find it helpful" even though it is not yet "entirely polished." As they note on the draft, a revised version of this article will be published in the forthcoming special issue of the Federal Sentencing Reporter later this month, and Professors King and Klein "welcome any suggestions or comments readers may have." Here's the article:
UPDATE: With thanks owed to Peter Schmidt, who does great work with the USSGuide, I can now provide this pdf version of the King/Klein article:
Also, now on the USSGuide's Blakely page is a terrifically helpful circuit-by-circuit list of Blakely rulings. As Peter rightly notes to me, we need to get prepared for "the onslaught of cases we all expect in the next few weeks."