July 12, 2004
The ABA weighs in on Blakely
I have just received a copy of the letter sent by the American Bar Assocation President Dennis Archer to Senators Hatch and Leahy, which aparently responds to a letter from the Senators asking for the ABA's views on Blakely. The letter is available for downloading here:
The whole (brief) letter is an interesting read. Here are some choice quotes:
On behalf of the ABA, I urge the Committee not to respond in haste to the decision in Blakely.... Though the implications of Blakely may be considerable, prudence counsels that congressional action should await development of case law on the applicability of Blakely to the Federal Sentencing Guidelines... [T]oo hurried a response may result in unintended consequences that run counter to the fundamental tenets of prevailing sentencing theory and Blakely’s constitutional underpinnings.
We are particularly opposed to any reform measures, whether interim or permanent, that compel waiver of Blakely rights. ... [A]ny law or policy that relies upon the ability to force defendants to waive their constitutional rights for its effect must be regarded as extremely problematic in a just society.
The 5th Circuit Speaks (and we have a circuit split)!!
I have just heard that the Fifth Circuit just held the federal sentencing guidelines constitutional in US vs. Pineiro, no. 03-30437. Here's the link. Chief Judge King, writing for a unanimous panel that included Judges Barksdale and Pickering, says at the outset:
This court assuredly will not be the final arbiter of whether Blakely applies to the federal Guidelines, but the unremitting press of sentencing appeals requires us to produce a decision. We have undertaken to discern, consistent with our role as an intermediate appellate court, what remains the governing law in the wake of Blakely. Having considered the Blakely decision, prior Supreme Court cases, and our own circuit precedent, we hold that Blakely does not extend to the federal Guidelines and that Pineiro’s sentence did not violate the Constitution.
In Pineiro, the presentence report held the defendant responsible for amounts of drugs much greater than the amounts found by the jury at trial and further recommended a sentence enhancement for his leadership role in conspiracy. [N.B.: iffy facts on the leadership role issue suggests that this is a case where the burden of proof, and not just the fact-finder, could be significant]. The Fifth Circuit worked through all the past federal decisions finding the federal guidelines scheme constitution and explained:
Undeniably, Blakely strikes hard at the prevailing understanding of the Guidelines. The Guidelines, unlike Washington’s Sentencing Act, are not statutes, but they are nonetheless binding on sentencing courts. ... But Blakely, which did not actually involve the federal Guidelines, is not the only case that we must consider. While we are bound to follow Blakely, as an inferior court we are also bound to examine the Supreme Court’s prior pronouncements and guidance regarding the nature of the Guidelines. That examination reveals that a number of the Court’s prior cases, including cases that reject various constitutional challenges to the Guidelines, are founded on the proposition that there are constitutionally meaningful differences between Guidelines ranges and United States Code maxima....
These cases, and others like them, do not discuss the Sixth Amendment right to a jury trial, and we do not pretend otherwise. What is true, however, is that the Supreme Court has repeatedly blessed the Guidelines and upheld them against sundry constitutional challenges, often employing the proposition that the United States Code, and not the Guidelines, establishes maximum sentences for offenses. The Supreme Court’s cases, and ours, have articulated a particular vision of the interaction between the Guidelines and the United States Code, and it is a vision that has held constitutional meaning. To reject that view of the Guidelines would not directly 'overrule' any Supreme Court holding--a prerogative reserved unto the Court itself--but it would plainly create an unsettling tension with them....
Given the nature of the Guidelines, we think the better view--and one that respects the prior decisions of both the Supreme Court and this court--is that the relevant 'offenses' and 'maximum punishments' are those defined and authorized by Congress in the United States Code. Judicial findings under the Guidelines that set sentences within that authorized range therefore do not offend the Constitution.
Following Tuesday's Senate Judiciary Hearing
The crackerjack staff at The Ohio State University Moritz College of Law library have reported to me that Tuesday's Senate Hearing about Blakely, scheduled for 10am, will be webcast. This link here brings up a page with a webcast link for when the hearing gets going. The report also indicated that the hearing would be broadcast on C-Span at some time, but the broadcast schedule has not been set. C'mon C-Span, what could possibly be more important than live Blakely hearings? And please, C-Span, at least set a schedule so I can program my TiVo!
My two cents (and those of my casebook co-authors)
Along with the wonderful co-authors of my sentencing casebook, Sentencing Law and Policy: Cases, Statutes, and Guidelines, I have prepared written testimony that I hope might in some small way have some impact at tomorrow's hearing in the Senate Judiciary Committee. You should find it here attached. The theme and advice to Congress is captured in the first two words of our title, which is "Go Slow: A Recommendation for Responding to Blakely v. Washington in the Federal System."
Download final_bermanmillerdemleitnerwright_blakely_sen. Jud. Comm. Testimony (7.13.04).pdf
Another district, another finding of unconstitutionality
They are now coming fast and furious: In US v. Lamoreaux, Western District of Missouri US District Judge Howard Sachs explains his approach in light of his conclusion that Blakely renders the federl guidelines unconstitutional. In a short but sweet opinion linked below, he says:
I have indicated in several courtroom proceedings that I find more persuasive the ruling of Judge Cassell in United States v. Croxford, 2004 WL 1462111 (D.Utah 2004) concluding that we have a constitutionally failed system of sentencing, and must disregard both base offense levels and enhancements as mandatory calibrators at sentencing in the wake of Blakely. Guideline provisions seem generally incapable of being severed in a sensible fashion. Unless and until a new system is devised, I anticipate using pre-Guideline methods of sentencing, giving due deference to facts and factors developed for sentencing use–but of course subject to statutory restrictions.
In a NY State of Mind
More big news from NYC: according to this NY Lawyer article, a second Eastern District of New York judge has found the federal sentencing guidelines unconstitutional after Blakely. According to this account:
Judge Nina Gershon on Friday sentenced a defendant who had challenged the guidelines to a maximum of 5 years in prison for lying to FBI agents about his relationship to a Yemeni sheik who allegedly raised money for al Qaeda. Lying to an FBI agent is punishable by 0 to 5 years in prison, but would generally result in 6 months. Prosecutors sought the highest sentence, saying it was warranted by a terrorism relationship as defined in the guidelines.
The jury, however, was not asked to decide whether defendant Numan Maflahi had lied to disrupt a terrorism investigation, only whether he had made a false statement. His attorney argued that the guidelines were unconstitutional and would not allow Mr. Maflahi to receive a more severe sentence based on a fact not found by the jury.
Ruling from the bench, Judge Gershon agreed that Blakely rendered the guidelines unconstitutional. But she said she was then left with the discretion to sentence the defendant and sentenced him to 5 years.
Harsher post-Blakely sentences?
There's reference in the Newsday article linked here to a sentence made harsher following a ruling that the federal guidelines are unconstitutional. Here's the passage:
Alan Vinegrad, the former Brooklyn U.S. attorney now at Covington & Burling, noted that last week lawyers for a defendant convicted of making false statements asked a Brooklyn federal judge to toss out the sentencing guidelines, which called for 10 to 16 months. The judge agreed, but then imposed a five-year term. "File that under 'Be careful what you wish for,'" Vinegrad said. "It may well be that Martha Stewart could do worse if the judge did not have the constraints of the guidelines."
I am very interested, and would like to hear about, the details of this case or any others in which a judge imposed a sentence higher than provided for under the guidelines (absent an upward departure) in this post-Blakely world.
Lots of media coverage
The media is starting to get wind of how big the Blakely story is. Here are articles about Blakely and its aftermath from USA Today, "High court ruling sows confusion", from NY Newsday, "Ruling throws cases in tailspin", from the Seatle Post-Intelligencer, "'Utter chaos' means less-severe sentences for serous crimes", and from the Tampa Tribune, "Confusion Rules In Federal Courts".
Here's a particularly thoughtful piece from the Baltimore Sun, "Sentencing policy on trial".
The "Bowman Proposal": White Knight or Force of Darkness?
During the coming week, and especially during Tuesday's Senate hearing, we will likley hear a lot about the "Bowman proposal." This will be a reference to an ingenious Blakely-fix that Professor Frank Bowman suggested in a memo sent to the US Sentencing Commission three days after Blakely was decided. The essence of the proposal is a legislative fix to essentially take the top off the existing guideline ranges -- i.e. "amend the sentencing ranges on the Chapter 5 Sentencing Table to increase the top of each guideline range to the statutory maximum of the offense(s) of conviction." The idea is that then guideline calculations technically become adjustments to only minimums and have no impact on applicable maximums. The current buzz is that this fix is the leading candidate for congressional action in response to Blakely.
Professor Bowman's memo in support of this approach is brilliant and a required read for anyone thinking about what should happen now. Here is a copy of Frank's original memo to the USSC (which I know has already been widely circulated):
Frank has asked me to highlight that his original proposal and thoughts have evolved a bit since this original memo was sent. He wanted me to stress that "the version now receiving most consideration would (a) be sunsetted, and (b) include a right of appellate review on an abuse of discretion standard for any sentence above the guideline minimum, and that one consideration in the abuse of discretion determination would be whether the sentence was 6 months or 25% greater than the minimum." Frank may have a final "new and improved version" of his legislative proposal for me to post in the next few days.
This proposal has engendered diverse reactions and diverse predictions about what would happen if it became law. It has emerged as a compromise, short-term solution that might or might not be a great way for Congress to start dealing with Blakely, but likely has the most chance of any suggested proposals. With this memo now in hand, I will leave you to decide for yourself whether the Bowman proposal should be championed as a white knight or a force of darkness in the post-Blakely world.
July 11, 2004
Blakely's impact in the other Washington
With a big week ahead as the folks in Washington DC cogitate about how to deal with Blakely in the federal system, we should recall that it was the other Washington which got this whole Blakely ball rolling. And, proving the impact will be consequential there, too, here's an article from Washington state detailing a case of a "businessman who stole $215,000 from his ailing stepmother [who] will be released from prison about 2.5 years early" due to Blakely problems in the extraordinary sentence he originally received.
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."