July 24, 2004
Sense and Severability
As I have spotlighted before (e.g., here and here and here), the so-called severability question is extremely important and extremely challenging after one draws the (simple?) conclusion that Blakely renders portions of the federal guidelines unconstitutional. With the exception of the Fifth Circuit and a few district courts, there is a near consensus that parts of the federal guidelines are unconstitutional. However, there is a multi-directional split on the tough severability questions which follow that conclusion.
Recall that the Seventh Circuit in Booker punted the severability question back to the district court, although essentially ruled that the guidelines were still operative and binding in cases without "Blakely" factors (background here). The Ninth Circuit in Ameline held that the guidelines were severable (background here), while the Eighth Circuit said in Mooney that they were not (background here). The Sixth Circuit's now-vacated opinion in Montgomery seemed to sever severability in its own distinctive way (background here), and the district courts have been both figuratively and literally all over the map.
Though not producing one answer, all these decisions in my view do share one attribute: the severability analysis in all these cases seems hurried and not sufficiently attentive to all the nuances in play. The Ameline court presented the most thorough severability discussion, but it still did not cover all the issues important in this analysis. Coincidentally, landing in my e-mail in-box today was a fantastic brief addressing severability issues submitted in court yesterday by the Federal Defender Services of Wisconsin. In a cover note, the brief is described as addressing "an interesting aspect of the severability question: where do we focus the severability analysis -- on the guidelines or on the SRA? And if the focus should properly be on the SRA, what happens next? Is supervised release gone? Does parole come back into play?"
The cover note alone piqued my interest, and reading the brief was a true eye-opener. Nearly every section raises an important and nuanced point about how complicated severability is in this setting, and the brief closes with this blockbuster paragraph:
If the SRA itself is non-severable, then sentencing really does change dramatically. Determinate sentences are gone; parole is back. Supervised release is no more. A variety of other innovations under the SRA disappear. Sentencing appeals nearly disappear after two decades, with the usual appellate jurisdiction rolled back. The government once more shares Rule 35(b) with the defense. It is 1983 again.
I think this brief is an absolute must-read for everyone thinking about these severability questions:
Good morning, Blakely
Everything Blakely calms down a bit for the weekend (thank goodness!), but there are still interesting tidbits of information from some newspaper articles discussing recent activities in the Sixth and Eighth Circuits. For example, this article describes DOJ's decision to agree to the sentence reduction sought by Tiffany Harris Montgomery, which in turn led her attorney to seek to drop her appeal in the Sixth Circuit. Still unclear is whether the Sixth Circuit is still seeking to expedite consideration of another Blakely case, since in the words of Gregory Van Tatenhove, US Attorney for the Eastern District of Kentucky, "we're back to square one in the 6th Circuit."
Perhaps even more consequential news comes from this article which, though primarily about the Eighth Circuit's Mooney decision, notes a potentially important district court ruling (and one that I had not yet heard about). The article reports:
Earlier this week in St. Louis, U.S. District Judge Jean Hamilton applied the Blakely ruling.... Hamilton sentenced drug dealer Keith Mosley to 87 months in prison instead of following guidelines that called for a term of 151 to 188 months based on past convictions that prosecutors said made him a career offender. The defense complained that no jury had made such a determination.
Though I am hesitant to put too much stock in a newspaper report of a case holding — especially when the report is in an article that elsewhere mis-names Judge Diana Murphy "Linda" — this ruling by Judge Hamilton could be quite significant if she ruled that there were "Blakely factors" implicated by certain criminal history determinations.
Meanwhile, this article from the ABA Journal got me wondering whether the Blakely decision could have been clearer if SCOTUS had the assistance of 10 additional justices. As Arsenio Hall used to say, "Things That Make You Go Hmmm..."
No waivering on waiver
With all the big news coming from federal circuit courts and even some state courts this week, it has been challenging to keep up with the still steady flow of federal district court decisions on Blakely. Throughout the weekend, I hope to spotlight some issues gurgling through important district court opinions (and I may also try to do a rough head count of district court rulings concerning constitutionality and severability).
For example, the decision of US District Judge Joseph Bataillon in US v. Terrell, 2004 US Dist. LEXIS 13781 (D. Neb. July 22, 2004), merits mention in part because of its thoughtful discussion of certain important waiver issues. In footnote 3, Judge Bataillon asserts that:
a defendant [may] waive the right to a jury trial and to consent to factfinding by the court, [but such] judicial factfinding must still satisfy the standard of "proof beyond a reasonable doubt." Simply put, the standard of proof is not the defendant's to waive; it is a burden placed on the government, without which a conviction cannot be obtained.
In addition, Judge Bataillon in the same opinion rejects the claim that a pre-Blakely plea agreement waives of the right now to raise Blakely issues:
the court rejects the government's contention that the plea agreement precludes the defendant from making [Blakely] objections. At a minimum, the defendant must understand the "critical" or "essential" elements of the offense to which he or she pleads guilty. The defendant could not have knowingly waived rights that neither he nor this court knew he had before the Blakely decision.
Though the fate of Terrell might be in question following the Eighth Circuit's ruling in Mooney, the Terrell decision merits praise for spotlighting and resolving some of the on-going waiver concerns.
July 23, 2004
Helpful weekend reading
If you're like me, you already have a big stack of weekend reading. Fortunately, I can here provide some materials to help everyone sort out all of the post-Blakely judicial fireworks. Specifically, now available here for download are the latest version of the fantastic articles by Professors Bibas and King & Klein, both of which take stock of the the post-Blakely world and help sort through the seemingly endless array of legal issues now in play:
As noted in these drafts, both of these articles will be appearing in a soon-to-be published special issue of the Federal Sentencing Reporter. Also scheduled to appear in that Issue of FSR are materials from Professors Rachel Barkow, Frank Bowman, Mark Osler and others.
At this link you can pre-order this special FSR Blakely issue, as well as obtain a general subscription to FSR. In addition, at this link you will find a place to sign up to receive an e-mail alert when new issues of FSR come online. Registration is free.
Heartland of Confusion
Judges Bright and Lay in their Mooney decision — which, despite its peculiar sequence of opinions is now binding law for seven states — assert that the "district courts in this Circuit have an urgent need for clarification." That is so very true, but I am not sure that the decision in Mooney really clarifies more than it confuses.
First, the Eighth Circuit expressly adopts Judge Cassell's severability analysis in Croxford and thus "direct[s] the district court to follow Judge Cassell’s procedure of treating the Guidelines as non-binding but advisory, unless the defendant consents to a Guidelines sentence." Slip op. at pp. 23-24 (emphasis in original). Seems simple enough, but this ruling leads to two big initial questions:
1. What in the world does it mean for a defendant to "consent to a Guidelines sentence"? Is that the same as waiving rights under the Sixth Amendment? Can this be done in a plea argeement? Can the defendant ask the judge first to state what the judge would impose with the guidelines only advisory and then decide if he "consents to a Guidelines sentence"? As noted before, a world in which the guidelines no longer bind judges could, in a particular case, actually be worse for a defendant (see background here noting a case in which a judge imposed a harsher sentence than permitted under the guideliens following a ruling that the federal guidelines are unconstitutional). But a defendant would not know which world is better until he gets at least some inkling of the likely ruling in an advisory world.
2. As I have argued here and discussed here, and as US District Judge Gregory A. Presnell has held in US v. King, 6:04-cr-35 (M.D. Fla. July 19, 2004) (details here), if severability analysis leads to the conclusion that the guidelines are wholly inapplicable in one case, then the same analysis suggests that the guidelines be deemed wholly inapplicable in every case (including those that do not involve any "Blakely factors"). By adopting Croxford, does the Eighth Circuit mean to reject that position and hold that the guidlines are advisory only in cases with Blakely factors, but still fully binding in cases without Blakely factors?
The Eighth Circuit speaks!!
I just got word that in US v. Mooney, the US Court of Appeals for the Eighth Circuit in a per curiam decision from a panel with Judges Murphy, Lay, and Bright, affirmed the defendant's convictions for mail fraud, securities fraud and money laundering and then "remand[ed] Mooney’s sentence to the district court for consideration of the issue he raises under Blakely v. Washington."
In a separate opinion, Judge Lay and Judge Bright hold that the federal Sentencing Guidelines are unconstitutional because they violate a defendant's Sixth Amendment right to have a jury find beyond a reasonable doubt and all facts legally necessary to his sentence, and the court adopts the approach set forth in US v. Croxford (D. Utah June 29, 2004) treating the Guidelines as non-binding but advisory, unless the defendant consents to a Guidelines sentence; on remand the district court should exercise its sound discretion to resentence defendant within the statutory minima and maxima of the offenses for which he was convicted. Judge Murphy — who was the Chair of the US Sentencing Commission until a few months ago — dissents from the majority opinion holding the guidelines unconstitutional.
UPDATE with analysis: Though not making as many important rulings as the Ninth Circuit decision in Ameline (details here and here), this decision in Mooney is fascinating and important in large part because of the cast of characters and also the factual setting. Though deeper commentary will follow late tonight, it bears note now that Judges Bright and Lay are both long-standing critics of the federal guidelines. See, e.g., Stith & Cabranes, Fear of Judging pp. 195-96 (1998) (lengthy endnote detailing copious (pre-Feeney) judicial criticism of the guidelines). And, as noted above, Judge Murphy served with distinction as the head of the USSC for over four years until resigning earlier this year. And, just to make the story richer, the sentence being reviewed was imposed by Judge James Rosenbaum, a name well known to those who closely follow federal sentencing reform (background here).
Of course, also in this interesting cast of characters is the defendant, Michael Mooney, who is not a low-level drug dealer but a former corporate vice-president convicted of insider trading. The decision in Mooney shows how complicated the guidelines make sentencing for economic crimes and also the challenges likely posed if complex financial issues have to be resolved by juries in the post-Blakely world. The decision also reveals — though it does not discuss at any length — the potentially very important and very challenging distinction between sentencing issues of law (what legally qualifies as "gain") and sentencing issues of fact (how much "gain" was in fact realized).
More Sixth Circuit action in Montgomery?
I have heard from a few sources that the Sixth Circuit did something today (en banc?) concerning the Montgomery decision. But I cannot yet find any tangible evidence of this. (Howard Bashman, where are you when I need you?) I am about to be off line for a meeting, but I hope readers in the know will use the comments to provide information and links to any news.
UPDATE: According to Jason Hernandez at the Blakely Blog, "the defendant and the government have joined in a Rule 42 of the Federal Rules of Appellate Procedure motion to dismiss the appeal in United States v. Tiffany Montgomery, No. 03-5256." I assume this motion will be granted, though I know that the Sixth Circuit has asked for expedited breifing in at least one other case that presents Blakely issues more cleanly.
Read all about it...
Howard Bashman at How Appealing yet again does a fine job of collecting the morning Blakely news here. Of particular note is this Houston Chronicle article exploring the impact of Blakely on indictment practices, this Sacramento Bee story about what the Ninth Circuit's Ameline decision could mean for "hundreds of crooks," and this Pittsburgh Post-Gazette story about the filing by local judge, who last year pleaded guilty to a Hobbs Act violation for extorting cash from a lawyer with cases pending before him, of a "handwritten motion to vacate his 2003 sentence of 27 month" based on Blakely.
Blakely's impact on pleas and bargaining
Informed observers of the criminal justice system know that, at least before Blakely, criminal trials with juries were rare events. The latest data show that 97% of all federal convictions are obtained through guilty pleas, see United States Sentencing Commission, 2002 Sourcebook of Federal Sentencing Statistics, Figure C (May 2004), and state statistics are similar (though generally not as extreme).
Though the Blakely court did not cite these statistics directly, Chief Judge William Young of the US District Court of the District of Massachusetts highlighted his concerns about plea practices in US v. Green, a 177-page magnum opus opinion which found the federal guidelines unconstitutional just a few days before Blakely was handed down (background here). Judge Young asserted that "the Sixth Amendment guarantee of trial by jury has been eroded as never before in the history of our nation":
the Department [of Justice] is so addicted to plea bargaining to leverage its law enforcement resources to an overwhelming conviction rate that the focus of our entire criminal justice system has shifted far away from trials and juries and adjudication to a massive system of sentence bargaining that is heavily rigged against the accused citizen.
The future after Blakely is so uncertain in part because it is unclear how the High Court's decision will impact our system's heavy reliance on bargained justice. Will there be more trials? Should there be? Will guilt/innocence be at issue in more trials or will we just have greater jury consideration of sentencing factors?
As we ponder these questions, we can and should examine and monitor how Blakely may be impacting both trial and plea practices. For example, here's a newspaper story this morning from Tennessee in which a local DA reports that the "Blakely case affected [his] decision to accept a plea agreement" in a homicide case. I hope the media, along with the academy, will continue to explore what Blakely might really mean for trial and plea practices. (This Baltimore Sun article deserves praise for its recent look at these issues.)
July 22, 2004
Justice O'Connor speaks!!
According to this news report, Justice O'Connor spoke briefly about Blakely at the Ninth Circuit conference:
"It looks like a No. 10 earthquake to me," O'Connor told the annual conference of the 9th U.S. Circuit Court of Appeals.... [She also said] she was "disgusted in how we dealt with it."
Fascinating news from Tennessee
Apparently I was on to something when I said earlier that today was going be a big day for Blakely in the states. In addition to all the developments reported earlier today, I just found this breaking news report from Tennessee:
By Executive Order, Governor Phil Bredesen today named a panel of criminal justice officials charged with making recommendations to preserve the use of enhancement factors in Tennessee’s criminal sentencing laws, in light of [Blakely]. The Governor’s Task Force on the Use of Enhancement Factors in Criminal Sentencing will determine if a special session of the General Assembly is necessary to protect the Tennessee Criminal Sentencing Reform Act called into question by the ruling and will determine what legislation, if any, might be necessary, officials said.
The newspaper article linked above is worth a read, in part because it includes the full text of the Governor's executive order. It also details the composition of the TFUEFCS (I made that acronym up myself):
The 13-member Task Force on the Use of Enhancement Factors in Criminal Sentencing will consist of the Attorney General and Reporter or his designee, the Commissioner of the Department of Correction, the Chairman of the Board of Probation and Parole, as well as one member from each House of the Legislature, to be appointed by the Speakers. Eight additional members will include at least one each of the following groups: appellate judges, criminal trial judges, general sessions court judges, district attorneys, public defenders, criminal defense lawyers and victims of crimes. [COMMENT: What?? No law professors?? Geez, we get no respect.] The Governor shall appoint a Chair from among the members, who will appoint five (5) ex-officio, non-voting, members to serve in an advisory capacity. The Task Force will report to the Governor no later than August 27 on whether a special session of the Legislature is necessary to revise the state’s sentencing laws. The group is also charged with recommending legislation even if it’s determined a special session is not necessary. In that case, the panel will have until November 15 to recommend legislation for next year’s session of the Legislature.
What should Congress be doing?
Various folks I have spoken with today have shared my puzzlement over the Senate's quick consideration and passage of a "Concurrent Resolution" urging quick Supreme Court action on Blakely (basics here, commentary here). Helpfully, in the comments of a prior post, a reader pointed me to this link, which has the remarks of Senators Hatch and Leahy in support of the resolution. These remarks are quite thoughtful and informative, and they essentially summarize some conclusions that seemed to be drawn from last week's Senate Judiciary Committee hearing.
Helpfully, the law school academy is hard at work developing ideas and suggestions for when Congress is ready to jump fully into the Blakely pool. Specifically, I am pleased to be able to post two distinct recommendations for how Congress should respond to Blakely from Professors Albert Alschuler and Mark Osler. Both documents thoughtfully examine where we are and need to go in the world of federal sentencing, though they produce significantly different recommendations. Both efforts are required reading for anyone thinking seriously about appropriate legislative reponses to Blakely.
More state Blakely news in Minnesota and elsewhere
After Wednesday was a huge Blakely day in the federal system, it looks like today might be dominated by state news (and particularly by northern states starting with an M). As first reported here, the Minnesota Court of Appeals issued the state's first major Blakely ruling ealier this week in the course of overturning a sex offender's 40-year prison sentence. To quote Paul Harvey, here's "the rest of the story":
In State v. Whitley, the Minnesota Court of Appeals holds that the findings of fact under Minnesota's pattern sex-offender statute need now be proved to a jury beyond a reasonable doubt. As noted in the very helpful e-mail report to me about the case:
Interestingly, the Court indicates that Apprendi and a Minnesota Supreme Court case called Grossman, and not just Blakely, dictate this result. The remand instruction is cryptic, as Minnesota has no system of sentencing juries or anything of the sort (at least not yet).
In news from states not starting with an M, this well-done article from the Knoxville News-Sentinel reports on a Tennessee decision from an intermediate appellate court which reduce a defendant's sentencing by a year in a child abuse case following Blakely.
The Michigan Supreme Court speaks!!
We now have what I believe is the first state Supreme Court decision to expressly consider Blakely. Today in Michigan v. Claypool, the Michigan Supreme Court articulated the view (in footnote 14) that Michigan's guideline scheme operates in a manner that avoids Blakely problems:
Michigan ... has an indeterminate sentencing system in which the defendant is given a sentence with a minimum and a maximum. The maximum is not determined by the trial judge but is set by law. MCL 769.8. The minimum is based on guidelines ranges.... The trial judge sets the minimum but can never exceed the maximum (other than in the case of a habitual offender, which we need not consider because Blakely specifically excludes the fact of a previous conviction from its holding). Accordingly, the Michigan system is unaffected by the holding in Blakely that was designed to protect the defendant from a higher sentence based on facts not found by the jury in violation of the Sixth Amendment.
In a separate opinion concurring in part and dissenting in part, Chief Judge Corrigan suggests that Blakely matters in Michigan may not be so simple:
I agree with the majority that the recent United States Supreme Court decision in Blakely v Washington, does not invalidate Michigan’s indeterminate sentencing scheme as a whole. Nonetheless, the majority’s sweeping language regarding judicial powers to effect departures (not limited to downward departures) will invite challenges to Michigan’s scheme; it appears to conflict with principles set out in Blakely.
Here's the full opinion for your reading pleasure:
There are additional opinions and issues of note in Claypool, which looks like a very interesting state guideline case wholly apart from its encounters with Blakely. Because I am not well versed on Michigan state law —indeed, there may be a clause in my Ohio State contract which legally forbids me from thinking too much about anything Michigan — perhaps readers more familiar with Michigan's sentencing scheme can provide some immediate commentary on this decision.
UPDATE: In this article discussing the Claypool decision, Jim Neuward, director of the State Appellate Defender Office, says "It's nowhere near as simple as the court thinks." said
Wednesday's work by the Legislative Branch
Perhaps tired of standing on the sidelines, Congress also got into the act on Wednesday through the Senate's consideration and passage of a "Concurrent Resolution" urging quick Supreme Court action on Blakely (background here). A quick read of the document makes it seem harmless enough; it concludes by asserting the "sense of Congress that the Supreme Court of the United States should act expeditiously to resolve the current confusion and inconsistency in the Federal criminal justice system by promptly considering and ruling on the constitutionality of the Federal Sentencing Guidelines." Though the idea of one branch ordering another to act quickly seems a bit unsavory to me, I am disinclined to complain about Congress joining lower courts and observers in pleading for the Supreme Court to move fast.
But I can complain -- or at least question -- some of the language tucked into the resolution. Specifically, consider Paragraphs 5 and 6:
... [para 5] Whereas the statutory maximum penalty is the maximum penalty provided by the statute defining the offense of conviction, including any applicable statutory enhancements, and not the upper end of the guideline sentencing range promulgated by the Sentencing Commission and determined to be applicable to a particular defendant;
[para 6] Whereas both Congress and the Sentencing Commission intended the Federal Sentencing Guidelines to be applied as a cohesive and integrated whole, and not in a piecemeal fashion;...
This language jumped out at me because Paragraph 5 seems to adopt concepts and terminology from Judge Easterbrook's dissent in Booker in an effort to distinguish the federal guidelines from the Blakely holding. Whether this resolution and its language will matter one whit to the Supreme Court seems unlikely, but it is interesting that Congress is using Paragraph 5 of the resolution to try to shield the federal guidelines from Blakely's reach. And then, as Marty Lederman at the SCOTUSBlog has already noted here, Paragraph 6 seems to be speaking to (and trying to resolve) the issue of severability.
In short, the language of Paragraphs 5 and 6 is clearly crafted to influence the on-going consideration of the very two issues the High Court will face when it takes a federal Blakely case. And my first reaction is to complain of untoward congressional meddling; but perhaps a healthy perspective would lead me to call all this appropriate inter-branch dialogue.
Wednesday's work by the Executive Branch
As if I wasn't already hogging the faculty printer, a few hours after Ameline comes down I get six large pdfs with the SG's filings seeking cert. in Booker and Fanfan (basics here). Helpfully, Marty Lederman at the SCOTUSBlog has this post and this post, while All Deliberate Speed has this post, discussing the way the SG is coming to the High Court with Blakely issues. In addition, here's Thursday's NY Times article covering the SG filing.
Though the SG's case choices might be debated, I am now much more concerned about the way the severability question is framed. Here's the key question the SG wants answered if the Supreme Court decides Blakely applies to the federal guidelines:
whether, in a case in which the Guidelines would require the court to find a sentence-enhancing fact, the Sentencing Guidelines as a whole would be inapplicable, as a matter of severability analysis, such that the sentencing court must exercise its discretion to sentence the defendant within the maximum and minimum set by statute for the offense of conviction.
Cert. question no. 2 in both Booker and Fanfan (emphasis added).
I have highlighted part of the question because it seems to take as a given that the guidelines are readily applicable in a case in which the Guidelines would not require the court to find a sentence-enhancing fact. DOJ and the USSC and many judges, such as Judge Cassell in his decisions in Croxford and Thompson (background here), have asserted that even if the Guidelines are wholly inapplicable in cases that involve so-called "Blakely factors," they are still wholly applicable in cases that do not involve "Blakely factors."
However, as I have argued here, and as US District Judge Gregory A. Presnell has held in US v. King, 6:04-cr-35 (M.D. Fla. July 19, 2004) (details here), it does not seem sound to divide up the severability issue this way. I highly encourage everyone to read Judge Presnell's opinion to see how forcefully he argues that if the guidelines are wholly inapplicable in any case, then they should be deemed wholly inapplicable in every case even if the case does not involve any "Blakely factors."
I am concerned that the way the SG has framed the severability question in the cert. petitions (due to the language in bold noted above) might prevent the High Court from answering all aspects of the severability question. But perhaps those familiar with Supreme Court practice can tell me not to worry because the Court can ultimately do whatever it wants. Marty Lederman's updated post here gives me some comfort.
Wednesday's work by the Judicial Branch
After a seemingly calm Blakely morning, the afternoon started its shift into warp speed with news that the Ninth Circuit had a major Blakley ruling in US v. Ameline (basic details here). The Ameline ruling is major first and foremost because it represents the third appeals court -- after the Seventh in Booker and the Sixth in Montgomery (though that panel decision has since been vacated) -- to declare aspects of the federal sentencing guidelines unconstitutional due to Blakely.
Though third in time, Ameline is by far the biggest circuit ruling to date because it addresses (though sometimes obliquely) so many more issues than any of the other circuit rulings. This post over at All Deliberate Speed provides highlights of ground covered in Ameline, and this article from law.com is also very informative.
Most critically, the decision speaks directly and thoughtfully to the severability issue -- rather than punting as was done in Booker. The Ameline court draws on canons of construction and congressional intent to conclude the guidelines are severable. See, e.g., slip op. at p. 33 ("the government has failed to overcome the presumption in favor of severability"). I am not sure the court really loved this conclusion, but it was clearly chary about declaring the whole guideline structure unconstitutional. See, e.g., slip op. at p. 30 ("We are reluctant to establish by judicial fiat an indeterminate sentencing scheme.").
Interestingly, though my own impression is that district courts to date have been fairly evenly split on the severability question, the Ninth Circuit implies in footnote 2 that it is adopting the majority rule. Indeed, on Wednesday, I received three new district court opinions declaring the guidelines unconstitutional, two of which found the guidelines not severable, Compare US v. Marrerro, 04 Cr. 0086 (S.D.N.Y. July 21, 2004) (Rakoff, J.) (not severable) and US v. Sweitzer, Cr-03-087-01 (M.D. Pa. July 19, 2004) (Rambo, J.) (same), with US v. Lynch, 03-CR-137-K (N.D. Ok. July 2004) (Kern, J.) (severable).
There is a lot more which can and should be said about Ameline, but I've got two other branches to get to tonight. Nevertheless, I see two additional big elements in the decision: (1) the court expressly sanctions the use of a sentencing jury to find aggaravating sentencing facts (see slip op. at 34; see also background here), and (2) the court implicitly holds that a defendant can waive his right to a jury, but cannot "waive down" the burden of proof from beyond a reasonable doubt to preponderance (see slip op. at 34 n.19).
Questions as we branch out
I will have a lot to say in a series of posts about the Blakely work of each of the branches on Wednesday. But a few questions jumped to mind as I was reviewing the day's events:
1. What is the shortest period of time between a Supreme Court decision and the filing of a cert. petition in a subsequent case by the United States seeking clarification of the decision's meaning or reach? The SG's filings on Wednesday came only 27 days after Blakely was handed down. Is that some kind of a record? Where's the SCOTUS version of Tim Kurkjian when I need him?
2. How often does Congress pass joint resolutions and have they ever had any consequential legal impact? More specifically, has Congress ever previously passed a resolution to tell another branch of the federal government to do its job more quickly?
July 21, 2004
Congress clears its throat!!
Though I have not gotten official word, I think today we have had a three-branch trifecta. It is, of course, now old news that the judicial branch spoke up again through the Ninth Circuit's decision in Ameline (here), and we also now have heard from the executive branch through the SG's papers filed with the Supreme Court seeking review in Booker and Fanfan (here).
Apparently not wanting to be left out of all the action, it seems the legislative branch has also been busy. I have now heard from two sources that Congress is working on a "Concurrent Resolution," through which Congress will express its collective view that the US Supreme Court should act expeditiously to resolve the confusion caused to the criminal justice system by Blakely v. Washington.
I will post more on this front and provide commentary when possible. But, after quite a day, it is time for a break.
UPDATE: I have received copy of the resolution which has apparently already been passed by the Senate and likely will be passed by the House before the end of this week (or so I am told). Here's the text:
The Solicitor General Speaks!!
Re-load the paper in your printers, because I have been lucky enough to receive pdf copies of the documents that United States has filed in the Supreme Court today seeking expedited review of US v. Booker and US v. Fanfan!! It appears that US v. Booker will be assigned docket number 04-104, and US v. Fanfan will be assigned docket number 04-105.
UPDATE: the fine folks over at at the SCOTUSBlog have, as usual, all the goods on all the Supreme Court doings, including a cool audio file.
The 9th Circuit speaks!!
This just in. The Ninth Circuit, in US v. Ameline, through an opinion by Judge Richard A. Paez (with Judge Wardlaw in agreement and Judge Gould dissenting), decided to "examine sua sponte whether the Blakely rule applies to sentences imposed under the Sentencing Guidelines." And it holds:
We hold that Blakely’s definition of statutory maximum applies to the determination of the base offense presumptive ranges under § 2D1.1(c) of the Sentencing Guidelines, as well as the determination of the applicability of an upward enhancement under § 2D1.1(b)(1). As a result, we hold that Ameline’s sentence, based on the district court’s finding by a preponderance of the evidence of 1,603.60 grams of methamphetamine—despite Ameline’s admission of only a detectable amount of methamphetamine—violates Ameline’s Sixth Amendment right to a jury trial. Because we may sua sponte review an issue based on a change in the law by the Supreme Court, we hold that we may properly review Ameline’s Blakely claim and conclude, regardless of whether we apply the harmless or plain error standard, that the district court violated Ameline’s right to have the facts underlying his sentence found beyond a reasonable doubt. Finally, we hold that the Blakely rule’s effect on the determination of a base offense level under § 2D1.1(c) and an upward enhancement under § 2D1.1(b)(1) do not render the Sentencing Guidelines facially invalid. Accordingly, we vacate Ameline’s sentence and remand for resentencing.
More commentary when I get to actually read the full opinion (all 45 pages of it!)
UPDATE: I'm still working through the opinion, but have been alerted to the neat fact that this blog is cited in a few of the footnotes. Cool.
The US Sentencing Commission speaks (sort of)!
I was just forwarded an article to appear in the Chicago Daily Law Bulletin which sets forth some viewpoints of US Sentencing Commissioners on Blakely. Based on what I have heard from folks dealing with Blakely "in the trenches," there are aspects of the article that are absolutely astounding. Apparently in an interview US District Judge Ruben Castillo asserted:
that only about a fifth of the sentences in federal court involve upward departures made on the basis of factual determinations made by the sentencing judge. ''Eighty percent of the cases in the whole country are unaffected,'' Castillo said.... [And] ''All indications are there's going to be zero retroactive application of Blakely,'' Castillo said.... ''I think at the end of the day, we're going to be left with a very discrete number of cases that are going to be affected by Blakely,'' Castillo said.
Though the retroactivity point is complicated and contestable (some thoughts here), the claim that 80% of federal cases are "unaffected" almost took my breath away. I hope readers who might have view on this important point will use the comments to explain whether I should resist suggesting that USSC rhymes with ostrich.
Sixth Circuit: a case study of Blakely chaos
Last week's Senate hearings (some background here and here), as well as quotes in newspaper stories and on-line commentary (e.g., my duel of metaphors with Dahlia Lithwick) highlight that there is an on-going interesting and nuanced debate about whether there is, in fact, a crisis in federal sentencing. Of course, without some sort of standard "crisis" metric, no one can conclusively declare a winner in this debate.
What can be done, however, is to examine the chaos that Blakely is causing in particular jurisdictions. The District of Utah might be viewed as an epicenter of such chaos because four different judges (in the same building?) have apparently come to four different conclusions about what Blakely means for federal sentencing. Or perhaps Florida would serve as a useful case study because, as this recent post highlights, federal sentencing practices in Florida's Southern and Middle Districts have been dramatically (and inconsistently) altered by Blakely.
But I am inclined to focus on the chaotic gyrations in my home Sixth Circuit. This newspaper article describes (with a few legal inaccuracies) some of the turmoil caused by the bold panel decision in Montgomery (background here and here), and the subsequent decision by the full court to vacate the panel decision and hear the case en banc (details here).
Simply following the bouncing Montgomery ball is challenging enough, but consider the impact on other cases. Though I know some Ohio courts have postponed sentencings while all this is worked out, it seems plausible that prosecutors and defense attorneys might have made some strategic decisions during the days when Montgomery was binding circuit law. In addition, though the Sixth Circuit has sought quick Blakely briefing in Montgomery (as well as in at least one other case which might augur a consolidated ruling), a decision from the en banc court seems unlikely before at least mid-August. (Briefing was due July 28, and last I heard oral argument had not yet been scheduled.)
What should be done "on the ground" during this period? Should every district judge in the four Sixth Circuit states postpone all sentencing decisions until the Sixth Circuit rules en banc? Should Sixth Circuit panels considering pending sentencing appeals also delay decisions until en banc guidance is rendered? Should prosecutors Blakely-ize indictments and/or seek express Blakely waivers while we are waiting? (I was quite intrigued to learn from some Ohio prosecutors last week that Montgomery in some ways actually made their lives easier: ironically, a ruling that the guidelines are wholly advisory allows federal criminal practice to return at the indictment stage to "business as usual," but a ruling that the guidelines are partially operative might require major changes and additions to existing and future indictments.)
Will (can?) Blakely become a campaign issue?
The Blakely story is interesting in part because of the dynamic and distinctive political perspectives that can influence views on sentencing reform in theory and practice -- e.g., consider the seemingly strange coalition of Justices in the Blakely opinions. This reality, combined with the complicated legal particulars of the Blakely rule, may explain why we have not (yet) heard any heated political rhetoric in the discussions of Blakely. Moreover, the New York Times in this Week in Review article suggests that crime, "once as much a staple of campaigns as the sight of politicians kissing babies, has become perhaps the biggest non-issue of the 2004 election."
But followers of sentencing reform know how quickly all this might change, especially since Congress over the past two decades has a history of passing new and tough sentencing laws in sync, not coincidently, with federal election cycles. Thus, I feel comfortable promoting in this space a new website devoted to election law issues unveiled yesterday by my own Moritz College of Law. Of particular relevance to sentencing law and policy is the website's coverage of the topic of felon disenfranchisement, to which I am contributing.
UPDATES: Will Baude, rightly renown blogger for his work at the group blog Crescat Sententia, today has this very interesting piece at The New Republic online, which links the stories of politics and judicial appointments to Blakely. And, over at the thoughtful blog All Deliberate Speed, political dynamics are discussed toward the end of this extended criticism of the Bowman proposal for a legislative reponse to Blakely (background on the Bowman proposal can be found here and here).
Start of today's Blakely news
Howard Bashman at How Appealing once again does a wonderful job of collecting most of the morning Blakely news here, and Jason Hernandez does a smash-up job giving some of the highlights here. Let me also discuss some items of note from some of these stories:
In this article from the Billings (Montana) Gazette, US District Judge Richard Cebull and US Attorney Bill Mercer discuss their views of the impact of Blakely. And Mercer makes the important point that not all sentencing facts are the same:
Mercer said some sentencing facts may be easy for juries to decide, such as the number of images involved in a child pornography case. Other crimes, like fraud, may require a more difficult analysis if a jury has to decide, for example, a victim's "reasonably foreseeable'' financial harm, he said.
This article from the The Advertiser of Lafayette, Louisiana reports on the efforts of obtain Supreme Court review for Francisco Pineiro, the defendant whose case prompted the Fifth Circuit's ruling that the federal sentencing system is not affected by Blakely.
I previous suggested that the decision by MD Fla. District Judge Gregory Presnell in US v. King (background here) -- which concludes in a bold, provocative and well-reasoned opinion that after Blakely "the determinate scheme set up by the Guidelines violates the Constitution and can no longer be used in any case" -- was the first major Blakely ruling from Florida. However, this article reports that a lot of Blakely activity has been transpiring in the Southern District of Florida.
The article first reports that on Monday US District Judge Donald L. Graham in Miami, ruling from the bench, "declared that part of the guidelines to be unconstitutional, meaning the ability to enhance a defendant's sentence for certain unproven conduct." The article thereafter sets forth this "partial scorecard of federal judicial actions in South Florida" (based in part on information from criminal defense attorneys):
US District Judges James Lawrence King in Miami, Jose A. Gonzalez Jr. in Fort Lauderdale and K. Michael Moore in Miami have stated that they will not enhance sentences absent a jury finding about any aggravating facts or proof beyond a reasonable doubt. In contrast, U.S. District Judges James I. Cohn and William P. Dimitrouleas, both in Fort Lauderdale, have held that Blakely does not apply to federal sentencing under the guidelines.... Meanwhile, Southern District Chief Judge Zloch and US District Judges Kenneth L. Ryskamp and Donald M. Middlebrooks in West Palm Beach have taken the creative approach of handing down alternative sentences -- depending on whether the guidelines survive or not.
Tracking Blakely developments in the states
According to this story, the Blakely earthquake had its first aftershock in a Minnesota state court on Tuesday when the Minnesota Court of Appeals overturned a sex offender's 40-year prison sentence. Apparently, the state guidelines called for a sentence of 57 months, but the trial judge had imposed a 40-year sentence based on the conclusion that the defendant was a patterned sex offender.
Helpfully, for those interested in tracking Blakely's impact and the developments in the state courts, the National Center for State Courts has already produced this very helpful report entited "Blakely v. Washington: Implications for State Courts". This report not only is rich with analysis of what Blakely could mean for state sentencing systems and potential responses, but it also includes a terrific appendix detailing "Sentencing Practices and Other Relevant Policies in the States." Among the many interesting analytical points in the memo is the important observation that "probation and parole can be affected by Blakely under certain circumstances."
In addition, there are a number of valuable state sentencing links within the NCSC report, including a link to this memo by Robert L. Farb of The Institute of Government at the University of North Carolina, entitled "Blakely v. Washington and Its Impact on North Carolina’s Sentencing Laws."
July 20, 2004
Huge news from the Sunshine State
In what I believe is the first on-the-record Blakely ruling of note from Florida, we get a whopper in US v. King, No. 6:04-cr-35 from United States District Judge Gregory A. Presnell of the Middle District of Florida (Orlando division). In what, from a quick read, looks to be a very thorough and thoughtful opinion, Judge Presnell concludes:
Taking Blakely to its logical conclusion, the determinate scheme set up by the Guidelines violates the Constitution and can no longer be used in any case. The Court notes, however, that despite a return to an indeterminate sentencing scheme, it will continue to rely on the Guidelines as recommendations worthy of serious consideration. Slip op. at p. 12 (emphasis added).
In a breath-taking passage that seems to agree with a point I made here (and that Martha Stewart might have hoped would have been rendered a few days earlier), Judge Presnell explains:
The suggestion that courts use the Guidelines in some cases but not others is at best schizophrenic and at worst contrary to basic principles of justice, practicality, fairness, due process, and equal protection. Courts simply cannot apply a determinate sentencing code to one defendant whose sentence raises no judicial fact-finding enhancement issues and a separate discretionary scheme to another defendant whose sentence does raise enhancement issues. Such a structure not only seems to violate equal protection principles but would lead to the perverse result that both Government and criminal defense attorneys would plot to finagle their way into the determinate system or indeterminate system depending on the judge and the various factors relevant to the particular defendant’s sentence.
Wowsa!! Lots more commentary about this decision and other recent developments later tonight. In the meantime, here is the full opinion for everyone's reading pleasure:
Download us_v. King.pdf
Unconfirmed rumor: When an Orlando lawyer involved in the King case was asked, "The Guidelines have just been declared unconstitutional in all cases, now what are you going to do?", he said, "I'm going to Disneyworld!!"
SCOTUS Action: It's Fanfan-tastic
Pardon the awful play on the NBA's old slogan, but I am a bit too punchy to come up with something better. In any event, lots of news and commentary concerning the two post-Blakely cases that, by all insider accounts, the Solicitor General will be appealing to the Supreme Court (background here).
Lyle Denniston has this extended post on the SCOTUSblog noting that "Scope of Booker, Fanfan appeals still open." Lots of very interesting and important "pre-game" analysis here, including this trenchant observation:
It is possible that, in trying to craft a narrow set of questions in order to try to hasten a Supreme Court decision that could end at least some of the turmoil surrounding the Guidelines, the government may leave some interesting – but perhaps secondary – issues unresolved.
In addition, Jason Hernandez has this post at the Blakely Blog reporting that the SG's office may have its cert. petitions completed (and filed??) before the end of this week. He also notes via Marcia Oddi's post here from The Indiana Law Blog that the Seventh Circuit has amended its decision US v. Booker, though only apparently to make "minor, non-substantive amendments." To see for yourself, here is the amended version of Booker.
More reports from NY front lines
Lot's of news to report in rapid fire posts. Federal public defender Jennifer Brown writes in to report about a ruling Southern Distict of NY Judge Shira A. Scheindlin handed down in a case she had before Judge Scheindlin on July 9, 2004. Here's the report:
In the case of US v. Krystine Burton, 04 CR 266, Judge Scheindlin ruled (without argument from the parties) "This is in fact my first post-Blakely sentence, and I have been givinga lot of thought as to how I wish to proceed in the post Blakely era. Until anappellate court speaks, each judge will be deciding for him or herself how she wishes to proceed, and I think I am going to fall in that group of judges who agrees with what Judge Cassel wrote in the Croxford case, namely, as far as I am concerned, the federal sentencing guidelines are unconstitutional in full. We can't have part of it unconstitutional and part of it constitutional. It is a single integrated scheme. If the enhancements are unconstitutional, so are the departures. The whole scheme falls apart and I have no intention of applying it." She then imposed a non-guideline sentence of time served and 3 years of supervised release which was the same sentence she said she would have imposed under the guidelines. She said she planned to issue alternative guideline sentences in all her cases.
Blakely in the morning papers
Always the early riser, Howard Bashman at How Appealing provides a good bit of the morning Blakely news here and here. And here is an additional article from the Rochester Democrat and Chronicle. All the articles include noteworthy accounts of Blakely ripples in various parts of the country, and I found particularly interesting this account of Blakely's impact on Alaska state sentencing and this report of developments in Arizona.
The Arizona story is the first I have seen spotlighting how probation revocation decisions might be impacted by Blakely:
One problem that needs to be addressed is how to handle a sentencing hearing for probation violators. "If someone is on probation, they haven't waived their right to have a jury trial on the aggravating factors," [local Graham County Attorney Ken] Angle said. "But, if they violate their probation, we need to know how we are going to handle this."
Finally, those intrigued by the Second Circuit's decision to certify Blakely questions to the Supreme Court can focus on this New York Law Journal article about the effort. Since I am, by virtue of my biography, partial to the Second Circuit, I liked seeing the court's decision described by Gary Stein as a "bold and creative act of judicial statesmanship."
Institutional challenges for Blakely clean-up efforts
The state of federal sentencing in the post-Blakely world is, by all accounts, in some form of chaos, turmoil, crisis or anarchy. Fortunately, the latest word from this New York Times article and the folks at the SCOTUSBlog is that acting SG Paul Clement will be pushing the Supreme Court to consider both US v. Fanfan (background here) and US v. Booker (background here), and asking the High Court to act on an expedited basis.
Unfortunately, a cert. grant by the Supreme Court in these cases would not magically stop the madness. I have advocated for rapid Supreme Court action (see here and here), because I think such action is a necessary pre-cursor to more effective and sustained efforts by other institutions to reform federal sentencing procedures and practices. But, even on a expedited schedule, it is unlikely that we will have a decision from the Supreme Court before it's time to go trick-or-treating. Moreover, as detailed here, in part because so many uncertainties and questions surround Blakely, there are reasons to fear that the Supreme Court is too divided on these issues to provide quick or clear guidance on these matters.
For these and perhaps other reasons, Professor Frank Bowman has not given up hope for a legislative fix ASAP. As previously discussed, Professor Bowman suggested, in a memo sent to the US Sentencing Commission three days after Blakely was decided, an ingenious Blakely-fix that could retain the basic elements of the existing federal sentencing guidelines. And over the past weekend, Professor Bowman put pen to paper again to produce another very thoughtful memo to the USSC in which he argues that "some legislative solution is a desirable response to Blakely." In so doing, Professor Bowman says that "part of the reluctance to move forward with an immediate legislative response stems from a failure to map out the most likely consequences."
Frank, in his own wonderfully intricate way, provides in the memo available below a map of likely consequences of different course of action. This mapping effort leads Frank to conclude that the prospects for effective and timely action by the Supreme Court are small, whereas prompt legislative action could bring some order -- especially because, Frank argues, his short-term Blakely-fix could be applied to current cases without significant ex pot facto problems (see pp. 8-9).
Professor Bowman has asked me to share his latest memo along with an invitation to readers to send him responses about the merits of the arguments generally (and the memo's ex post facto analysis in particular). Frank Bowman can be reached at firstname.lastname@example.org.
July 19, 2004
Sixth Circuit going en banc in Montgomery
In a post available here, I noted some prudential considerations that might lead active members of the Sixth Circuit to let the Montgomery decision stand (background here), even though the bold and opaque ruling likely does not represent the views of a majority of active judges on the court. But Howard Bashman at How Appealing has the official word and details here that the Sixth Circuit issued an order "granting the request of a member of the Court for rehearing of this case en banc." Consequently, the "previous decision and judgment of this Court is vacated, the mandate is stayed. Supplemental briefs are due from both sides on July 28. As I suggested here right after Montgomery was handed down, the decision to take Montgomery en banc is not surprising given the peculiar factual setting for a big Blakely ruling and the not wholly representative judges on the panel.
As noted in my earlier post, by granting en banc review and vacating the original panel decision, sentencing rules within the Sixth Circuit are returned to uncertainly (and potential disparity from district to district) until a decision is rendered by the en banc court. In addition, because of the peculiarities of the Montgomery case as a setting for addressing Blakely, I think courts and litigants in the Sixth Circuit might have occasion to wonder whether the en banc court will (or even should) address Blakely at all when the issue might be altogether avoided.
In short, the chaos continues. A few posts soon will discuss the status and prospects of developing clean-up efforts.
Late breaking developments on many fronts
I will be posting at length later tonight about many late day developments: (1) SCOTUSBlog reporting here about the Solicitor General's plans for getting a Blakely case in front of the Supreme Court soon; (2) the Blakely Blog reporting here about (sketchy) information concerning the Sixth Circuit vacating sua sponte the decision in Montgomery; and (3) efforts afoot by Frank Bowman to get the Sentencing Commission and Congress to continue to consider fast action to try to clean up the Blakely mess through legislative action. A lot more details and commentary in coming posts.
Another SDNY finding of unconstitutionality
I just received a report from Sean Hecker, Staff Attorney of Legal Aid Society's Federal Defender Division concerning another Blakely ruling from the Southern District of New York. Here's the full text of the report:
Today, Judge Rakoff, a federal district judge in the Southern District of New York held that Blakely applied to the USSG and that the guidelines were not severable. Accordingly, he sentenced the defendant without being bound by the guidelines. In the felon-in-possession case before him, he ultimately settled upon a sentence that equated to the low-end of the range that would have applied if the base offense level had applied, without a two-point enhancement for possessing a gun with an obliterated serial number.
Shrewd readers will know that this is not Judge Rakoff's first noteworthy ruling that a federal sentencing statute was unconstitutional. Specifically, in US v. Quinones, Judge Rakoff concluded that the Federal Death Penalty Act violates the Due Process Clause of the Fifth Amendment because DNA testing has demonstrated that "innocent people are convicted of capital crimes with some frequency." See 196 F. Supp. 2d 416, 420 (S.D.N.Y. 2002); see also US v. Quinones, 205 F. Supp. 2d 256 (S.D.N.Y. 2002) (reaffirming ruling). The Second Circuit ultimately reversed that ruling in US v. Quinones, 313 F.3d 49 (2d Cir. 2002), affirmed, 317 F.3d 86 (2d Cir. 2003).
News from Indiana
Marcia J. Oddi over at the The Indiana Law Blog reports that there are two significant recent Blakely rulings coming from the Southern District of Indiana. Marcia explains here that news of these rulings comes from a local newspaper story which reported:
Twice in the last two weeks, US District Judge Sarah Evans Barker of Indianapolis has ruled the federal sentencing guidelines are unconstitutional and cited the Blakely ruling in her decisions.
Neither Marcia nor I can find any more information on these rulings, but we both hope to be able to provide updates soon.
Anyone doing Blakely "head counts"?
A number of folks have reasonably asked — and I am always wondering — about the total number of courts that have declared the federal sentencing guidelines unconstitutional in part or in whole. In addition to not having had the time to "do the math," one challenge in such a "head count" is to decide how to define and categorize different Blakely-related rulings. Some on-the-record statements of unconstitutionality might be deemed dicta, and I can tell from some newspaper reports that some rulings may not (yet?) be reflected in a written opinion. In addition, we have seen some judges making "tentative" rulings in response to the submission of special verdict forms or in a discussion of plea agreements.
The folks at UUSGuide are, to my knowledge, doing the most systematic job of organizing rulings of unconstitutionality by circuit on its Blakely page here. But I am not sure if anyone has — or is trying to systematically organize — all the information about what is going on out there. Needless to say, I would be grateful to anyone working on such a head count for sharing any cumulative data.
More Blakely in the headlines
This article from the Houston Chronicle covers the federal story well, and it also reports that "interest [in Blakely] is so high in the legal community that at least five Web sites devoted to Blakely have sprung up in the past two weeks." Similarly, this article from the Salt Lake Tribune and this article from the Belleville News-Democrat take a broader look at what Blakely could ultimately mean for federal sentencing.
This article from the Arizona Republic covers the Arizona state sentencing angle well, and it notes that "more than 98 percent of criminal cases in Maricopa County are settled by plea agreement [and prosecutors are hoping that] potential problems can be sidestepped by requiring defendants out front to waive their right to have a jury decide aggravating factors." Similarly, this article from the Fayetteville Observer examines the impact of Blakely in for North Carolina state sentencing, and notes that "local defense lawyers and prosecutors had differing opinions about how the ruling would affect North Carolina's courts."
Andy Warhol would be so proud
Get those stop watches ready everyone, since my 15 minutes of fame officially start now. In this morning's Wall Street Journal, Laurie P. Cohen has a beautifully written piece, entitled "Law Professor's Web Log Is Jurists' Must-Read," which captures my current internet moment perfectly. I am terribly flattered by the piece, not to mention impressed by Ms. Cohen's ability to use the adjective "Warholian" in the first paragraph. (I would provide a link, but the WSJ requires a paid subscription for on-line content. So sign up, like I am planning to do. And thanks to the folks at TalkLeft for being the first to note and send me the story.)
UPDATE: The good folks at the WSJ have agreed to allow me to post the article. Here it is.
I want to mark this occasion by thanking everyone for all the assistance I have received from so many quarters. This blog would not really be possible without the help of so many who have forwarded cases and other valuable materials for posting, as well as shared great insights about our mixed-up post-Blakely world. (I also always really appreciate corrections of those sneaky typos.)
Finally, I want to especially complement Ms. Cohen — you can't be too nice to them reporters — for highlighting in her article some e-mails I have received that highlight the real impact of the Blakely story on real people. For an academic, Blakely is intellectually fascinating; but I know from my in-box that this saga is far more personal for a great many defendants and their families. I have already suggested to Ms. Cohen that her next Blakely article should focus on these compelling stories.
July 18, 2004
Jury Sentencing: a range of possibilities
I finally had a chance to read closely EDNY District Judge Weinstein's two jury sentencing opinions (background and downloads here). Both are must reads for those who want to think deeply about what Blakely might represent and about how we might construct a new sentencing world with significant jury participation. Here I want briefly to note various ways juries might be seriously involved in sentencing decision-making:
Juries as comprehensive fact-finders: We might require juries to be the finders of all (or at least all significant) sentencing facts. Notably, Blakely only requires juries to be finders of aggravating facts, allowing judges still to find mitigating facts. But though the Constitution apparently permits this distinction, we might still think a sounder system would have juries decide all these facts.
Juries as fact-finders and sentence advisors: We might want juries not only to find facts, but also to advise judges about appropriate punishments. Notably, Justice Scalia's concurring opinion in Ring suggests that the Apprendi/Ring/Blakely line only requires jury fact finding and that judges can still be given authority to make ultimate sentencing decisions. But though the Constitution may not require juries to do anything more than find (aggravating) sentencing facts, we might still think a sounder system would have juries also recommend sentences based on these facts.
Juries as fact-finders and sentencers: We might want juries not only to find facts, but also to impose specific punishments. Again, though the Constitution may not require juries to do anything more than find (aggravating) sentencing facts, we might still think a sounder system would have juries impose specific sentences based on these facts.
Judge Weinstein's opinion in US v. Khan considers these issues through the lens of the interests of the Founders, and he asserts that the "authors known to the founders had a high respect for the wide powers of the jury over law, fact and punishment." However, Judge Weinstein also adroitly notes that consideration of these issues "must begin with the humble acknowledgment that the founders, if they could at all understand our current bloated federal criminal law and the labyrinthian structure of the Guidelines, would be appalled or bemused."
Finally, Judge Weinstein astutely notes that jury participation in sentencing "is the mode in capital cases" and that "six states ... currently allow jury sentencing in noncapital cases." He also cites the robust and growing academic literature exploring jury sentencing (to which should be added this terrific forthcoming article by Professors Nancy King and Rosevelt Noble examining how felony jury sentencing actually operates in Kentucky, Virginia, and Arkansas).
In short, Judge Weinstein, as always, gives us lots to think about.
Taking Blakely to the (en) banc
Yet another reason for the Supreme Court to move fast on a Blakely case is to try to reduce the stunning amount of lower court judicial time and energy being occupied with efforts to figure out what Blakely means for the federal system. As detailed in this article, renown sentencing lawyer Benson Weintraub is seeking to have the Southern District of Florida district judges (all 24 of them) rule en banc on the constitutionality of the federal sentencing guidelines in the wake of Blakely. Though en banc rulings by district courts are rare, in this setting Weintraub's motion, which seeks a uniform standard for post-Blakely sentencing in the district, seems to make a lot of sense. Otherwise, there is a reasonable risk that, as in Utah, different courts in the same district will apply considerably different sentencing standards.
Similarly, I have be speculating lately about whether the Sixth Circuit will or should seek to consider en banc the case of US v. Montgomery. As detailed here and here, the Montgomery ruling is bold, opaque and likely does not represent the views of a majority of active judges on the Sixth Circuit. But prudential considerations might suggest that active judges in the Sixth Circuit leave this decision alone. First, it is all but inevitable that the Supreme Court will speak to these issues (and soon, I hope); diverting the time and energy of all the active Sixth Circuit judges to consider and rule on this issue may not be wise given that any en banc ruling would be controlling law only until the Supreme Court speaks. Second, because just the order granting en banc review serves to vacate the original panel decision, sentencing rules within the circuit would be again uncertain in the period between the granting of en banc review and the rendering of a decision by the en banc court. Even if active Sixth Circuit judges do not think Montgomery is a sound decision, they might reasonably conclude that a consistent (unsound) ruling is better for the time being than circuit uncertainty and possible intra-circuit district court variation in sentencing approaches. However, this article from the Toledo Blade unsuprisingly notes that district judges in the Sixth Circuit are still uncertain about how best to proceed with sentencings.
FSG found unconstitutional on both coasts of Pennsylvania
I have now in hand copies of two interesting Blakely cases from two different district courts on opposite sides of Pennsylvania. In US v. Harris, US District Judge Arthur J. Schwab of the Western District of PA explains that federal sentencing guidelines "might not be a pure 'statute,' but they surely are statutory and legislative, and the Blakely decision renders them unconstitutional." He goes on to explain:
And because the relevant conduct and enhancement provisions of the federal guidelines are an integral part of a multi-faceted, interrelated mechanism, it is not possible to declare some parts unconstitutional but spare the remainder of the guidelines, leaving intact an incomplete and unintended skeleton. Thus this Court finds that the federal sentencing guidelines are an unseverable and unconstitutional whole. Essentially, then, we are left with the pre-guidelines sentencing scheme, pursuant to which defendants will be sentenced in this Court unless and until Congress, the United States Supreme Court or the United States Court of Appeals for the Third Circuit informs us otherwise.
And yet, as Judge Schwab further explains:
The Court intended to have the parties brief [whether a prior] plea agreement could be enforced or implemented in whole or in part, and what to do if it could not. However, following the announcement of this Blakely ruling in open court, the government and defense counsel, and more importantly, defendant, chose to waive any Blakely rights and proceed to sentencing under the plea agreement and the sentencing guidelines.... Thus, although this Court has declared the United States Sentencing Guidelines unconstitutional under Blakely, the sentence in this case ultimately was crafted under the guidelines, by agreement of the parties.
Meanwhile, in US v. Leach, US District Judge Stewart Dalzell of the Eastern District of PA explains that his conclusion (previous noted here) that
Under the teaching of Blakely and Booker, we therefore will make no enhancement to Leach's sentence that he has not, by his admission, already agreed to. Because there is, as the United States Department of Justice and Judge Posner recognize, the possibility that the Guidelines do not admit to an easy severability under Blakely, we shall also announce a nonguidelines alternative sentence.
After some interesting permitted and disallowed guideline calculations, Judge Dalzell arrives at sentencing range of 188-235 months and imposes the same 188 month term both as a guidelines and nonguidelines sentence.
Sunday, Blakely, Sunday
The media continues to figure out how big the Blakely story is, and the increased coverage means I can and will only try to provide an occasional sampling of the Blakely media reporting (though readers should continue to send me links to news stories that are especially interesting or thoughtful).
So here goes: This article from The Illinois News Gazette discusses efforts in a local federal bank fraud case to deal with Blakely through a plea agreement waiver of Blakely rights; this story from the Richmond Times-Dispatch discusses Richmond US District Court Judge Henry Hudson's conclusion that, after Blakely, he must "employ the guidelines as merely advisory and will utilize [his] own, independent judgment in determining the appropriate sentence to impose"; this article from the Providence Journal has a thorough review of Blakely's impact on Rhode Island's federal cases; and finally, this article from the Syracuse Post-Standard has a thoughtful account of how Blakely is impacting federal cases in upstate New York and also reports that "federal judges across the country have been e-mailing each other to figure out the impact of [Blakely] on the sentencings of criminals." (Aside: How clever to use technology to share information about Blakely; I should try something like that.)
Helpfully, there are also now many good sources for getting a somewhat broader perspective on Blakely developments. For example, Newsweek now has available this thoughtful piece, which locates the Blakely story within a broader sentencing reform landscape. And Ken Lammers over at CrimLaw nicely reviews and comments upon various post-Blakely views of the federal guidelines in this post. And finally Jason Hernandez over at the Blakely Blog continues to do a very fine job collecting and linking to many Blakley news stories and other materials.
Of course, I will be reading the papers this Sunday morning while watching a star-studded leaderboard battle for the Claret Jug at The British Open. Let's see if Ernie Els can vindicate my (not so bold) prediction here that he was the player to beat. I expect my favorite golf blog will have a lot to say when The Open is all said and done.