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July 21, 2004

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.

July 21, 2004 in Blakely in Appellate Courts | Permalink | Comments (8) | TrackBack

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.

July 21, 2004 in Blakely Commentary and News | Permalink | Comments (11) | TrackBack

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.)

July 21, 2004 in Blakely Commentary and News | Permalink | Comments (2) | TrackBack

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).

July 21, 2004 in Blakely Commentary and News | Permalink | Comments (1) | TrackBack

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.

July 21, 2004 in Blakely Commentary and News | Permalink | Comments (1) | TrackBack

Miami vice?

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.

July 21, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts | Permalink | Comments (2) | TrackBack

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 21, 2004 in Blakely Commentary and News, Blakely in the States | Permalink | Comments (2) | TrackBack

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!!"

July 20, 2004 in Blakely in Sentencing Courts | Permalink | Comments (2) | TrackBack

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.

July 20, 2004 in Blakely in the Supreme Court | Permalink | Comments (1) | TrackBack

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.

July 20, 2004 in Blakely in Sentencing Courts | Permalink | Comments (3) | TrackBack

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."

July 20, 2004 in Blakely Commentary and News | Permalink | Comments (3) | TrackBack

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 frbowman@iupui.edu.

Download bowman_716_to_ussc_on_blakely.doc

July 20, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack

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.

July 19, 2004 in Blakely in Appellate Courts | Permalink | Comments (2) | TrackBack

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.

July 19, 2004 in Blakely Commentary and News | Permalink | Comments (2) | TrackBack

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).

July 19, 2004 in Blakely in Sentencing Courts | Permalink | Comments (1) | TrackBack

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.

July 19, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Federal Sentencing Guidelines | Permalink | Comments (1) | TrackBack

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.

July 19, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in Sentencing Courts | Permalink | Comments (3) | TrackBack

More Blakely in the headlines

Howard Bashman over at How Appealing has already effectively collected a whole lot of morning Blakely news here.

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."

July 19, 2004 in Blakely Commentary and News | Permalink | Comments (4) | TrackBack

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 19, 2004 in Blakely Commentary and News | Permalink | Comments (6) | TrackBack

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.

July 18, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts | Permalink | Comments (5) | TrackBack