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August 21, 2004

A Capital idea: Some non-Blakely news

Because the Blakely story is always on-going, it is challenging to keep up with other sentencing law and policy news. But, especially in the important arena of capital punishment, there's no shortage of significant developments on many fronts. Helpfully, the folks at the Death Penalty Information Center do a fantastic job assembling news and resources on capital punishment, and here you can see DPIC's coverage of recent death penalty developments. I have come across a few particularly interesting death penalty items which I'd like to briefly note:

1. This effective article from the New York Times discusses the confusion and uncertainty which surrounds the application of the death penalty in New York in the wake of the declaration in People v. LaValle that New York's death penalty statute is unconstitutional under the New York State Constitution because of its jury deadlock instruction (details here). Coincidently, the Lavalle decision was handed down by the New York Court of Appeals on June, 24, 2004, the same day Blakely was decided. Perhaps some cosmic force required the announcement of very important and very opaque decisions on that day.

2. I finally got a chance to watch the award-winning documentary "Deadline," which covers the emotional and legal issues surrounding former Illinois Governor George Ryan's decision in January 2003 to commute the death sentences of all defendants on Illinois' on death row. The film-makers provide remarkable access to the clemency hearings and insightful interviews with key figures, and the movie deserves all the accolades it has received. In addition, I've learned that the film-makers have created an official Deadline blog here, which is part of an ambitious outreach campaign.

3. I received a notice this week about a conference scheduled for September 10-11, 2004 at Indiana Law School entitled "Toward a Model Death Penalty Code: The Massachusetts Governor's Council Report." As noted here, earlier this year, the Massachusetts Governor's Council on Capital Punishment released a report outlining 10 recommendations for the creation of a more fair and accurate death-penalty system. The Report of the Governor's Council is quite interesting and provocative (as is the suggestion that it creates a Model Death Penalty Code), and thus the discussion at this conference should be engaging.

August 21, 2004 in Clemency and Pardons, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack

The next big Blakely issue: the prior conviction exception

As noted before here, the theoretical soundness of Almendarez-Torres' "prior conviction" exception to the Apprendi/Blakely rule has been widely questioned, and Justice Thomas' statements suggest that there are no longer five Justices who support this exception. Nevertheless, the "prior conviction" exception remains good law (for now), and we are continuing to see courts in the wake of Blakely giving this exception a broad reading.

The recent Indiana state court decision in Carson (details here) is one very recent example of a (questionable) state ruling applying this exception expansively to escape Blakely's reach. Similarly, a recent unpublished order from California in People v. Cairati, No. A104764 (Cal. Ct. App., Aug. 19, 2004) (available here) gave the Almendarez-Torres exception a broad application through this holding:

Here, in imposing the aggravated term of 11 years in state prison, the court relied on several aggravating factors including defendant's "prior convictions [that] show a continuing pattern of violence and escalation which is frightening," the viciousness of the current offense, that defendant was armed with a shovel when he committed the offense, and his prior poor or unsuccessful performance on probation. That defendant had prior convictions that were numerous or of increasing seriousness is a specific factor supporting an aggravated term. Assuming Blakely applies to the California determinate sentencing scheme, under Apprendi, as reiterated in Blakely, the fact of defendant's prior convictions does not require a jury determination. Because even a single aggravating factor is sufficient to justify the imposition of the aggravated term, the trial court could properly rely on defendant's prior convictions without a jury determination in imposing the aggravated term.

The Booker and Fanfan cases will not give the Justices a direct opportunity to address the scope and application of the prior conviction exception. It has been noted here that the High Court, just before Blakely came down, granted cert in a case, US v. Shepard, 03-9168, that could turn out to be a vehicle for revisiting Almendarez-Torres in light of Blakely. Yet, as detailed here and here, Shepard is a federal case technically about a little issue in federal law. And oral argument in Shepard likely will not take place before next year.

Just as the federal criminal justice system needs a quick clarification of Blakely's applicability to the federal guidelines, I think both state and federal criminal justice systems will soon need a direct clarification of the validity and scope of the prior conviction exception in the wake of Blakely.

August 21, 2004 in Blakely Commentary and News, Blakely in the States, Blakely in the Supreme Court, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (11) | TrackBack

Good timing (and good analysis) in Wisconsin

Just appearing on-line this morning is an interesting opinion in US v. Hamilton, 2004 U.S. Dist. LEXIS 16432 (W.D. Wisc. Aug. 17, 2004), in which District Judge Barbara Crabb thoughtfully explores whether a defendant's motion to reduce his sentence pursuant to 28 U.S.C. § 2255 based on Blakely is timely. The case is factually interesting because Hamilton seeks relief now though he was convicted over a decade ago and through his sentence became technically "final" in July 1994. The case is legally interesting because Judge Crabb astutely recognizes that Hamilton's Blakely claim, though now raised a decade after his conviction and sentence became final, might still be viable.

Judge Crabb first notes that defendant's "motion is not timely unless he can bring it under one of the exceptions to the usual one-year statute of limitations contained in § 2255." Working through the language of § 2255 and noting that to date "no court has held that ... the [Blakely] right applies retroactively to cases on collateral review," Judge Crabb ultimately concludes that Hamilton's "motion is premature." She then explains that "in these circumstances, the issue is whether [the 2255 motion] should be denied without prejudice, permitted but stayed or denied outright."

On the question of what now to do with the Hamilton's 2255 motion, Judge Crabb runs through the following thoughtful analysis:

On first consideration, it appears that defendant would not lose any rights if his motion were denied without prejudice. However, two matters give me pause.... As unlikely as it is, it is not beyond the realm of possibility that the Supreme Court would rule that Blakely applies to the sentencing guidelines, that this holding was obvious in the Blakely decision and that P 6 of § 2255 should be read as holding that the filing time begins to run on the day that the Supreme Court recognizes a new right, not on the day that the right is made retroactively applicable to cases on collateral review. If that were to happen, any defendant who had not filed within one year of the Blakely decision would be barred from obtaining the benefit of the decision.

The other factor is more likely and also more problematic. Now that defendant has filed his § 2255 motion with the court, I do not think I am free to ignore it or to treat it as anything other than the § 2255 motion it is intended to be. Thus, it becomes defendant's first filed § 2255 motion. If I deny it outright as premature, it is possible that the next motion that defendant files will have to be considered a second petition, subject to more onerous requirements under § 2255. To avoid this obvious prejudice to defendant, I will hold his present motion in abeyance, pending a decision on Booker. If in that case, the Supreme Court holds that Blakely does not apply to the sentencing guidelines, I will deny defendant's motion. If the Supreme Court reaches the opposite conclusion, I will allow the parties to brief the question of retroactivity at that time, together with any other issues that might bear on defendant's motion.

August 21, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

August 20, 2004

Federal and state news in Indiana

Marcia Oddi over at the Indiana Law Blog has this interesting post about Blakely rulings and Blakely influenced outcomes in the Indiana federal courts.

And some of my other Hoosier friends have sent me today an interesting decision from a state court of appeals, Carson v. State, No. 49A04-0310-CR-494 (Ind. Ct. App. June 11, 2004), coming from a petition for rehearing. Here are the highlights from a short opinion which can be downloaded below:

Now Carson asks this Court to find—pursuant to the recently-decided Blakely v. Washington, 124 S. Ct. 2531 (2004)—that his sentence violates his Sixth Amendment right to have the facts supporting the enhancement of his sentence tried to a jury. Given that Carson did not challenge his sentence on direct appeal, he has technically waived review of this issue, and the appropriate procedure would have been to challenge his sentence through post-conviction relief. Waiver notwithstanding, after considering the merits of Carson’s challenge, we find that Blakely has no effect on his enhanced sentence....

Indiana courts have not yet considered what effect, if any, the Blakely opinion may have on Indiana’s sentencing scheme. Carson urges us to find that his enhanced sentence is improper because the trial court "made factual findings and entered an enhanced sentence upon those findings" without requiring that a jury make those findings beyond a reasonable doubt. Those factual findings—or aggravating circumstances—consisted of the following: a history of criminal and delinquent activity, which includes multiple convictions; a need for corrective or rehabilitative treatment that can best be provided by incarceration in a penal institution or in a work release facility; and the strong likelihood that, based upon his criminal history, he will commit battery again. As to the first aggravator, the multiple convictions that the extensive criminal history comprises have already been proven beyond a reasonable doubt and are thus exempt from the Apprendi rule as clarified by Blakely. The other two aggravating circumstances are simply derivative of that extensive history of convictions and thus would seem also not to implicate the Blakely analysis. In any event, a single aggravating circumstance is adequate to justify a sentence enhancement. Therefore, even if our supreme court were to find that Indiana’s sentencing scheme runs afoul of the Sixth Amendment for the reasons articulated in Blakely, this finding would have no effect on Carson’s sentence.

Download carson_v. State.doc

August 20, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Blakely in the States | Permalink | Comments (3) | TrackBack

When will Booker and Fanfan be decided?

With the Acting Solicitor General describing the state of federal sentencing in dire terms (background here) and with so many federal courts and cases awaiting a ruling, I have to think the pressure on the Supreme Court to decide Booker and Fanfan very quickly will be considerable.

After all, a number of circuit and district courts have decided not to directly grapple with the implications of Blakely until the High Court acts (example here), at least one US Attorney has filed a district wide motion to "Stay All Scheduled Sentencing Hearings Pending Resolution By the United States Supreme Court on the Application of Blakely to the Sentencing Guidelines" (details here), and now we have magistrates freezing prisoner Blakely claims until the Supreme Court starts sorting out these matters (article here).

Yet, as I noted here, "to really bring more order to our changed sentencing world, the next Blakely case would have to address an enormous number of complicated and important questions." Moreover, the Justices are obviously deeply split on all these complicated and important questions. And, though the Fourth and the Sixth Circuits feel comfortable issuing consequential orders with opinions to follow (details here), I think the Supreme Court will appreciate the need for a written opinion to accompany its holdings.

So, adding all this up, when will Booker and Fanfan be decided? I am predicting after Halloween, but before Thanksgiving (although, depending on what the opinion says, the day the decision comes down may feel like Halloween or like Thanksgiving for many). Anyone else willing to make guesses in the comments about when Booker and Fanfan will be handed down?

August 20, 2004 in Blakely in the Supreme Court | Permalink | Comments (2) | TrackBack

Blakely all-around

Though perhaps only defense counsel want to give the Blakely decision a gold medal, each day we have news and reports highlighting amazing Blakely gymnastics. (Sorry for the lame Olympics metaphor, but I am behind on my sports references; also I have been thinking lately that certain circuits deserve medals in the new sports of precedent dodging and opinion avoiding.)

This article highlights that a federal magistrate in West Virginia is going to dismount all incoming prisoner Blakely claims for the time being:

"The law concerning the applicability of the Blakely decision to the Federal Sentencing Guidelines is in a state of uncertainty," U.S. Magistrate Judge Mary E. Stanley wrote, putting the motions on hold. The move is in response to efforts – primarily by prisoners representing themselves – seeking to strike enhanced sentences given by judges in the U.S. District Court for the Southern District of West Virginia.... Even if it is determined that the decision applies to federal sentence guidelines, "it is not clear whether Blakely will apply to persons who were convicted and sentenced before Blakely was decided," Stanley wrote.

Meanwhile, though some prisoners may have to wait to find out whether Blakely scores a ten for them, this article documents a sentencing in Massachusetts in which Blakely affected the judging. According to the article, US District Court Judge Michael A. Ponsor imposed a sentence of only six months of home confinement in a high-profile fraud case while noting that the defendant "only escaped a 15-month sentence thanks to a U.S. Supreme Court ruling that has, at the very least, skewed federal sentencing guidelines." The article reports that Judge Posner indicated that "in a pre-Blakely universe, Anzalotti's case would have fallen squarely within the sentencing guidelines, earning him a 15-month minimum sentence."

Finally, the Blakely Blog has posted here a terrific report on the decathlon of Blakely events and insights at the NASC conference earlier this week. And that post reminds me that I've not yet shared the last set of Ron Wright's terrific reports of his impressions of the event. Here they are:

Facts at trial or after trial? Several conference participants pointed out that not all enhancement facts will be reserved for bifurcated proceedings, even if state law provides for such proceedings. Based on the Kansas experience, along with statutory enhancement facts already embedded in the state codes of other jurisdictions, practicing lawyers noted that judges often allow facts “intrinsic” to the crime to come into the prosecution’s case in chief. In these trials, the prosecution simply asks for a special interrogatory to go to the jury, asking the jurors to "check a box." On the other hand, judges tend to divert facts “extrinsic” to the crime into a separate jury proceeding. This appears to be a way to preserve the basic functionality of the limits in standard rules of evidence.

Hidden infringements on judicial authority. Several judges at the NASC conference noted several unforeseen limits on their authority in sentencing guideline systems now imposed by Blakely. Judges before this decision could override a prosecutor’s decision not to seek an enhanced sentence and impose such a sentence if he or she found the necessary facts to support the higher sentence. Because Blakely requires notice, the judge as a practical matter can no longer regulate prosecutor choices in this way.

The finding of an aggravated fact in most systems authorizes but does not compel the judge to impose the aggravated sentence. Once a jury makes such a factual finding, judges said that they will feel more pressure as a practical matter to go ahead and impose the aggravated sentence. Finally, the judges said that they might become less inclined to create new non-statutory aggravating circumstances, out of concern for how juries will carry out the factfinding in unknown territory. Similarly, the judges would be less likely to approve non-statutory aggravating circumstances if proposed by the prosecutor.

Who benefits during plea negotiations in the short run? Many practicing attorneys and commission staffers believed that Blakely increased the bargaining advantages for prosecutors. One prosecutor said that “there won’t be many cases where we won’t be able to dream up an aggravating fact if the case proceeds to trial.” Plea offers, the attorneys said, will start low and will move up to include aggravated sentences routinely. Those aggravating facts will become a part of proof at trial, normally not leading to bifurcated juries. Only the pesky academics pointed out that prosecutors always start with a low offer and request an aggravated sentence later in the process. Perhaps the point is that Blakely made prosecutors more determined in selected cases to put the most damaging evidence in front of the jury.

The simplest version of economic theory suggests (at least in the short run, before any major legislation to rework a system) that Blakely should give defense attorneys an additional procedural right to use as a bargaining chip. This presumably would result in marginally better results for defendants. One defense attorney responded to this theoretical possibility eloquently: "We still have to waive everything, including jury rights under Blakely, to get the price the prosecutor names. Nothing’s changed. Same as ever."

August 20, 2004 in Blakely Commentary and News | Permalink | Comments (1) | TrackBack

The future of federal sentencing?

In a decision that is fascinating and breaks important new ground, US District Judge Jerome Simandle in US v. Harris, 2004 U.S. Dist. LEXIS 16239 (D.N.J. Aug. 18, 2004), explains the whys and hows of his use of a jury trial to establish sentencing factors in a complicated fraud case in which the government completed presenting at trial its case-in-chief on the very day Blakley was decided. The long opinion, which can be accessed here, is best summarized using the introductory paragraph of Judge Simandle:

On June 24, 2004, after twelve months of pretrial proceedings, ten days of trial, and the testimony of twenty-seven witnesses, the government completed its case-in-chief in this complex criminal case involving a conspiracy to produce and pass over ten million dollars in fraudulent money orders, and rested. On the same day, the United States Supreme Court issued its decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), a decision which called into serious doubt the constitutionality of the United States Sentencing Guidelines which permit a district judge to take into consideration, when sentencing a defendant, certain aggravating sentencing factors which he finds have been established by a preponderance of the evidence. The Blakely Court, considering a similar sentencing scheme in the State of Washington, held that a criminal defendant's Sixth Amendment right to trial by jury applies to aggravating sentencing factors, such that any fact, other than a prior conviction, that increases a sentence beyond the base offense range authorized by statute, unless stipulated by the defendant, must be proved to a jury beyond a reasonable doubt. This Opinion details the steps that this Court took to manage the continuing trial before it and to protect the rights of the five defendants involved, in light of the new legal landscape (and indeed the uncertainties) created by the Blakely decision. The defendants have asserted that no sentencing factors trial should be convened because these factors were not squarely presented to a grand jury and contained in the Indictment. The Court rejected that argument and conducted the sentencing phase trial to the jury after due notice to defendants, for reasons stated herein.

The story (or should I say saga) of this Harris case is factually and legally quite interesting, and Judge Simandle is to be complimented for his thoughtful work both on the fly during trial and in this written opinion. Has he given us a glimpse into the future of federal sentencing?

August 20, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

August 19, 2004

Insightful defense perspectives

Every time I read a new brief or commentary relating to Blakely, I get new insights about our mixed-up sentencing world and also about the sentencing world we might want to work to re-build. Today I reviewed two documents from the defense perspective --- an open letter to the NACDL from Larry Fassler available here courtesy of the Blakely Blog and a brief recently filed in the Fifth Circuit available below --- both of which had my Blakely brain humming again.

Larry Fassler's lengthy and insightful letter to the NACDL, in addition to having some amusing rants which reflect the obvious frustrations felt by defense representatives working in the federal system, also included a number of sober and sobering insights. Though the whole letter is worthy of a close read, the following paragraph especially got my attention:

The benefits of Blakely as applied to sentencing under the Guidelines will be many. In my opinion, the principal benefit is that it will make sentencing transparent and honest. I have worked with hundreds and hundreds of inmates sentenced under the Guidelines, helping them perfect appeals and 2255 motions, and my most fundamental observation from that work is that defendants have been shockingly deceived and misled about what they were really up against at sentencing. This lack of knowledge has severely and adversely affected key decisions defendants have made at different stages of the process of defending themselves. I have seen more inmates than I can remember who have pled out, expecting sentences like 5 to 8 years of incarceration, and who ended up with a 10, 20, even 30-year sentence. Likewise, I have seen men turn down a plea for 5 years and go to trial, because they had been told their sentencing exposure was 8 years, and end up with a 25-year sentence.

Meanwhile, the brief filed in the Fifth Circuit by lawyers Richard Haynes and Walter Boyd in the case of Julietta Leza reminded me that counsel even in circuits that have found Blakely inapplicable to the federal guidelines must keep raising and briefing Blakely claims, lest they be accused of having waived these claims when (if?) SCOTUS applies Blakely to the federal guidelines. And the facts of the case also reminded me of the all-too-common and very depressing reality that women sentenced to long terms of incarceration in the federal system often were just bit participants in the crimes of their male companions. The federal guidelines were righteously intended to foster gender equality, but they often seem to be insensitive to the larger gender inequalities in broader society. Sigh.
Download Leza_brief.pdf

August 19, 2004 in Blakely Commentary and News | Permalink | Comments (5) | TrackBack

It really is the end of the world, when...

this blog gets cited as "official authority." Yes, you read that crazy bit of news right. I just received (and make available below) a copy of an order entered today in US v. Onunwor, NO. 1:04-CR-211 (N.D. Ohio Aug. 19, 2004), by US District Judge James Gwin of the Northern District of Ohio. Here's the heart of the sentencing discussion:

With regard to the sentencing factors, the Court notes that the Sixth Circuit has recently determined that the Federal Sentencing Guidelines remain constitutional despite Blakely. See United States v. Koch, No. 02-6278 (6th Cir. Aug. 13, 2004). Because the Court cannot locate an official opinion published on this case, it presumes accurate the following order, as quoted on the Sentencing Law and Policy weblog [the opinion then quotes the Koch order and cites my post here, including the title "I'm home . . . and grumpy about the Sixth Circuit"]

Because the Sixth Circuit has instructed United States District Courts to apply the Guidelines, but also to provide as an alternative the sentence that the Court would enter under a discretionary sentencing regime, the Court intends to do just that. Thus, the Court will not bifurcate the trial into a "guilt phase" and a "sentencing phase." Nor will the Government need to put on at trial any additional evidence regarding sentencing factors. The only way such additional evidence would be necessary is if the Supreme Court were to rule that the Guidelines are severable. Only then will the Government need to prove sentencing factors to a jury, beyond a reasonable doubt. Should the Supreme Court later determine that the Guidelines are non-severable --- FOOTNOTE 1: For the reasons articulately expressed by Judge Gertner in United States v. Mueffelman, No. 01-CR-10387-NG (D. Mass. July 26, 2004), the Court finds that this outcome is the most likely. --- once any Guideline runs afoul of Blakely, the entire Guideline system will fall. Should that occur, we will return to a regime of discretionary sentencing, which of course would not require the Government to prove sentencing factors to a jury, beyond a reasonable doubt.

Needless to say, this is an important decision for reasons other that this (slightly comical) citation, and for me is just another remarkable example fo the different forms of chaos Blakely has engendered.
Download onunwor_order.pdf

August 19, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Principle versus pragmatism

In another report from his time at the NASC's national meeting, Ron Wright provides the following "News from the USSC":

Various staff members of the U.S. Sentencing Commission now believe that it is most likely the Supreme Court will uphold the guidelines. Nevertheless, they are planning for legislative options in the event that the guidelines are struck down. Part of that planning will be based on a comprehensive and empirically rigorous 15-Year Review of the current guideline system. The review, prepared by the staff and now being considered for possible adoption by the commissioners, tries to identify the strong and weak points of the guidelines in carrying out the purposes of the 1984 Sentencing Reform Act.

Participants at the conference were all speculating about the likely shape of any new legislation to reshape federal sentencing. The predictions were all over the map in some respects, but there was powerful consensus about one thing. The final product, in the view of most conference participants, would leave prosecutors with at least as much power as they held before Blakely, and would leave judges and defense attorneys with at least as little power.

Though quite pleased to hear the USSC is working on a Plan B, I am troubled by the idea that the USSC staff thought it likely the High Court would uphold the guidelines in the face of Blakely. In accord with Judge Cassell in Croxford and Judge Posner in Booker and the Ninth Circuit in Ameline and so many district court opinions, I cannot find a principled, jurisprudentially sound way to avoid the conclusion that Blakely renders at least part of the federal guidelines unconstitutional.

I can, however, appreciate many powerful pragmatic arguments for not applying Blakely to the guidelines because of the havoc likely to result from declaring unconstitutional a long-in-development and long-in-operation federal sentencing scheme. Indeed, I recently received a copy of a brief in which the government colorfully describes the consequences of applying Blakely to the federal guidelines (I have added the picture which merits a click to make larger):


To upset that understanding now [that judges can find facts by a preponderance at sentencing] would wreak havoc on the federal criminal justice system. Godzilla rampaging through Tokyo during a level 10 (on the Richter scale) earthquake could not wreak more havoc.... Pandemonium would reign supreme.

Staff members at the USSC apparently believe that the Supreme Court, following what is now a majority of circuit courts, will be moved more by pragmatism than principle to uphold the federal guidelines and reign in Godzilla, ... I mean Blakely. Though I make no predictions about the likely outcome in the Supreme Court, I do think Booker and Fanfan place the tension between principle and pragmatism in stark relief. Indeed, even the Blakely decision itself highlighted this dynamic: the dissenters really did not have any strong principled arguments against the majority's holding, but they did present quite powerful (though ultimately unsuccessful) pragmatic arguments.

August 19, 2004 in Blakely Commentary and News | Permalink | Comments (14) | TrackBack

Spanning the States

Though there has not been huge Blakely news from the states recently, many small state stories continue to gurgle. Ron Wright, who has my great thanks for a wonderful job of guest-blogging last week, has relayed to me some of these stories upon his return from the National Association of Sentencing Commission's national meeting. I'll share Ron's many insights in a series of posts, through first let me note(small) news from the state courts.

In Minnesota this week there has been a spate of remands from the courts of appeals with instructions to the district court "to consider the application of Blakely." State v. Carlson, 2004 WL 1826141 (Minn. App. Aug. 17, 2004); see also State v. Rivera, 2004 WL 1826586 (Minn. App. Aug. 17, 2004); State v. Henderson, 2004 WL 1833936 (Minn. App. Aug. 17, 2004). Similarly, a recent Indiana court of appeals' decision, Wilkie v. State, 2004 WL 1843005 (Ind. App. Aug 18, 2004), dodges direct consideration of Blakely in a footnote which states that the court is "mindful" of Blakely, but "leave[s] for another day whether and, if so, to what extent Blakely may affect a trial court’s finding of aggravators to support an enhanced sentence and our review of that sentence under Indiana Appellate Rule 7(B)."

This thoughtful news story effectively canvasses state sentencing developments, and explains why state Blakely stories have been slower to develop:

Blakely may have a somewhat more limited impact on the functioning of state sentencing systems because judicial fact-finding is used to determine sentences in only a small fraction of state-level cases. Plus, the nature of state sentencing systems makes it easier for state courts to sidestep the ruling until more permanent statutory solutions are enacted.

The article goes on to note, however, that we might just be noticing a period of calm before a major legislative storm:
Blakely could have considerable state-level repercussions, especially in states with sentencing structures similar to Washington's.... Daniel Wilhelm, director of state sentencing and corrections programs at the Vera Institute of Justice ... said he "absolutely" expects statehouses to be flooded with legislation aimed at tailoring state sentencing guidelines to bring them into compliance with Blakely, when legislatures reconvene next year. "People seem to be waiting to act until the legislatures reconvene in the new year," Wilhelm said.

Finally, this article notes that Kansas might serve "as a model for other states now looking to reform their systems of presumptive sentencing guidelines" because it "adopted a bifurcated system after the state supreme court in 2001 invalidated its system of presumptive sentencing guidelines." Interestingly, Ron had this report about views expressed at the NASC meeting concerning the "Kansas solution":

From Ron about the Kansas system:
Various academics, judges, prosecutors, sentencing commissioners, and defense attorneys [at the NASC meeting] related some of the events in Kansas. Kansas holds special interest for Blakely purposes, because a 2001 Kansas Supreme Court case, State v. Gould, anticipated the outcome in Blakely and struck down the use of judicial factual findings to authorize an aggravated sentence. The Kansas legislature responded by passing a statute that provides for bifurcated jury proceedings to find facts that could authorize an aggravated range sentence. As a result, Kansas now has a two-year head start in the use of bifurcated jury proceedings.

There have been very few bifurcated jury proceedings held in the Kansas courts. In most counties, there have been none at all; statewide, there may have been less than a half dozen. When these proceedings do occur, attorneys and judges estimated that they only added one to three hours to the jury trial.

Why so few bifurcated jury proceedings in Kansas? One explanation could be the fear of the unknowns and the hassle that could accompany the new extended jury proceedings. Another is the power of parties to negotiate an aggravated sentence: defendants might happily accept an aggravated range sentence in exchange for a reduction in the charges filed.

But judges and attorneys from Kansas relied on several features of Kansas law for more specific explanations. They noted that consecutive sentences now take the place of aggravated sentences. Under Kansas law, the judge can impose consecutive sentences up to double the length of the most serious charge if there is a conviction for a second count. Prosecutors have begun more actively to charge additional counts, making possible these consecutive terms. For example, drug deals can also be charged as conspiracies and/or violations of the drug tax law. Judges and lawyers in Kansas also point out that the sentences for the most serious offenses are already pretty high in the presumptive range. Thus, for the most important cases, aggravated sentences may not appear to be that attractive to prosecutors.

August 19, 2004 in Blakely Commentary and News, Blakely in the States, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

August 18, 2004

The 11th Circuit Speaks (again on plain error)!

In a decision seemingly dated August 15 but filed today (and citing a decision on August 16), the Eleventh Circuit in US v. Duncan, No. 03-15315 (11th Cir Aug. 18, 2004), decided as they had previously suggested in a footnote in US v. Curtis (background here), that the state of the law after Blakely is not "plain" and thus a Blakely problem does not constitute plain error. Here's some of the key language:

In the instant case, neither the Supreme Court nor this Circuit has resolved the issue of whether Blakely applies to the Federal Sentencing Guidelines, and as indicated above, the circuits that have addressed the issue are not all in agreement. Indeed, the majority of circuits that have addressed the issue reject Duncan's position that Blakely applies to the Guidelines. Thus, Duncan cannot satisfy the second prong of the plain error analysis.

This decision is noteworthy for many reasons, including that it moves the Eleventh Circuit, without an express holding, pretty close to joining the new majority position in the circuits that Blakely is inapplicable to the federal guidelines. In addition, the Duncan opinion takes some swipes at the Eighth Circuit's (now vacated) panel decision in Pirani finding a Blakely error to be plain:
We do not agree with the Pirani panel’s dismissal of the Fifth Circuit’s opinion [upholding the federal guidelines]. While we need express no opinion on whether we actually would reach the same conclusion as the Fifth Circuit if a Blakely challenge was properly before us, we believe that the Fifth Circuit’s view is rational–i.e. a reluctance to find that Blakely has undone years of Supreme Court precedent focusing on the maximum sentence as stated in the United States Code. We believe this is a rational view despite the fact that other circuits, although not the majority, have held that Blakely has in fact undone this established understanding.

August 18, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Teaching Blakely

I am busy preparing for the first session of my Criminal Punishment & Sentencing class here at Ohio State this afternoon — yeah, I cannot believe we start so early, either — and I am working through how to handle Blakely.

Fortunately, the casebook I helped co-author, Sentencing Law and Policy: Cases, Statutes and Guidelines, which was published by Aspen Publishers earlier this year, does not focus exclusively or even excessively on structured sentencing reforms. Consequently, I am fairly confident that Blakely will not require me to radically alter the way I teach this course. (Indeed, right now only perhaps parts of two chapters need to be significantly tweaked because of Blakely.)

But, obviously, the world of criminal punishment and sentencing is much different today than it was two months ago, and thus I feel I am about to embark on a 14-week Blakely-impacted teaching experiment. Moreover, these realities have me wondering how others gearing up for fall classes are working through these issues. Of course, any and every sentencing course must figure out what to do with Blakely, but what about more general courses on criminal law and criminal procedure?

I am eager to hear from colleagues (ideally in the comments) about Blakely teaching plans.

August 18, 2004 in Blakely Commentary and News | Permalink | Comments (8) | TrackBack

Another SCOTUS option for handling Blakely

We are now more than two weeks since the Fourth Circuit's peculiar order in Hammoud (background here and commentary here), and the promised opinions still have not appeared. Meanwhile, others involved in the Hammoud case have been able to write much faster: the lawyers representing defendant Hammoud were able to file a thoughtful petition for cert. in the Supreme Court within four days of the Fourth Circuit's order.

Yesterday I received a copy of Hammoud's cert. petition, and it perhaps partially explains the Fourth Circuit's struggles. As the petition notes, in Hammoud the district court relied on facts not charged in an indictment and not proven to a jury beyond a reasonable doubt to increase the defendant's sentence from a guideline range of 46 to 57 months to an imposed sentence of 1860 months (from a sentence of less than 5 years to a sentence of 155 years)! Though this amazing fact alone does not change the basic legal question of Blakely's applicability to the federal guidelines, these sorts of facts certainly highlight broader principles that seem to be animating the Blakely decision.

The entire cert. petition is a worthwhile read (and is available to download below). Among other interesting points, the petition argues that the Hammoud case "is an appropriate, indeed necessary, companion to Booker and Fanfan because of the breadth and uniqueness of the issues this case presents." Reiterating these themes, the conclusion asserts:

This case is an ideal companion to Booker and Fanfan. It presents a wide range of Blakely issues in a non-drug context and has the additional advantage of presenting a disproportionality issue under the Fifth Amendment.

Though I would not give good odds on the prospect that this petition will be granted, the filing still valuably spotlights for the Supreme Court the different federal settings in which Blakely arises.
Download cert_petition_in_hammoud_v_united_states.pdf

August 18, 2004 in Blakely Commentary and News, Blakely in the Supreme Court | Permalink | Comments (0) | TrackBack

Grand Ole Blakely

As noted previously here and here, the state so rightfully proud of its Grand Ole Opry should also be proud of its work to date on Blakely. And today I was pointed to this link, where Tennessee's Attorney General provides a very thoughtful — though perhaps a bit biased — set of opinions concerning the "Impact of Blakely v. Washington on Tennessee’s Sentencing Scheme."

The analysis section of this official AG Opinion (No. 04-131 and dated August 13, 2004) contains many insights about the possible reach of Blakely and the structure of Tennessee's sentencing laws. Though there are too many highlights to summarize, here's how the Opinion starts:

In light of Blakely v. Washington, does Tennessee’s sentencing scheme, Tenn. Code Ann. § 40-35-101, et seq., violate a defendant’s Sixth Amendment right to trial by jury as applied to the States via the Due Process Clause of the Fourteenth Amendment?

Yes, in part. Those portions of Tenn. Code Ann. §40-35-101, et seq., that allow a trial court to enhance a defendant’s sentence above the presumptive minimum through application of enhancement factors — other than the fact of a prior conviction or any factor admitted by the defendant — are constitutionally invalid. However, as more fully explained below, significant features of Tennessee’s sentencing scheme remain unaffected by Blakely.

August 18, 2004 in Blakely Commentary and News, Blakely in the States | Permalink | Comments (0) | TrackBack

A jury trial on criminal history?

Yet again, fewer Blakely media stories (background here), but great intrigue therein. Specifically, this article from The Wichita Eagle suggests that US District Judge Monti Belot has concluded, after a prosecutor moved to depart upward from the federal guidelines on the basis of a defendant's criminal history involving many previous DUI convictions, that "the Blakely ruling won't allow him to depart from the guidelines without first holding a jury trial."

August 18, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

August 17, 2004

More interesting (if dated) news from Florida

Perhaps we should blame Hurricane Charley for keeping this decision from getting on-line sooner, but I just found the very interesting ruling in US v. Grant, 2004 WL 1803196 (M.D. Fla. Aug. 12, 2004), issued by US District Judge Timothy J. Corrigan last week. Here's how Judge Corrigan made sense of how Blakely impacts federal guidelines sentencing in Grant:

Although guidance from the Eleventh Circuit and the Supreme Court on Blakely's effect on the United States Sentencing Guidelines is forthcoming, the undersigned cannot further postpone sentencing hearings until my superiors decide this issue. Any court is loath to rule that an enactment of Congress is unconstitutional. This is especially true when the entire congressionally mandated federal sentencing scheme is at risk. Thus, I have searched diligently for a way to uphold the Guidelines in their entirety post-Blakely. However, I have come to a conclusion which I think is inescapable: The rule of constitutional law announced in Blakely does apply to the federal Sentencing Guidelines. I so hold.

There have been a slew of Blakely opinions from other courts, district and appellate, which I have read and carefully considered. There is no need to replicate those scholarly efforts here. Instead, what follows is a summary of my holdings and how I intend to proceed until I receive appellate guidance:
1. The Supreme Court's decision in Blakely applies to the United States Sentencing Guidelines.
2. If the Guidelines would require a judge to enhance a sentence by finding facts beyond those "reflected in the jury verdict," the Guidelines are unconstitutional as applied.
3. In a case involving a plea agreement that does not waive Blakely rights or contain sufficient factual admissions to support applicable Guidelines enhancement provisions, the Guidelines are unconstitutional as applied.
4. The Guidelines can be constitutionally applied when there is no judicial factfinding that increases the defendant's sentence beyond the range dictated by the facts found by the jury. Thus, if the judge does not enhance a sentence based on additional factual findings not made by the jury, either because the judge determines that no enhancements are applicable or a sought after enhancement is not proven, the Guidelines may be constitutionally applied.
5. The Guidelines can be constitutionally applied when a plea agreement waives Blakely rights and allows the judge to determine enhancements under the Guidelines, or a plea agreement contains factual admissions which allow the judge to enhance under the Guidelines.
6. In a case where the Guidelines are inapplicable because they are unconstitutional as applied under Blakely, the Court, pursuant to 18 U.S.C. § 3553(b)(1), will sentence the defendant pursuant to 18 U.S.C. § 3553(a). Under 18 U.S.C. § 3553(a), the Court's sentence is informed by the factors contained therein and by the Sentencing Guidelines, but is indeterminate so long as it does not exceed the statutory maximum or fall below the statutory minimum.
7. Including sentencing enhancements under the Sentencing Guidelines in the indictment and attempting to prove them to the jury at trial is unauthorized and therefore unavailable.
8. Empaneling a sentencing jury is not authorized by law and is therefore unavailable.
9. The Court will conduct all sentencings under the Guidelines as before Blakely so that all Guidelines issues are addressed. The Court will also consider all issues relevant under 18 U.S.C. § 3553(a). If the Court can constitutionally apply the Guidelines, it will. If the Court determines at the sentencing hearing that the Guidelines cannot constitutionally be applied (because the Court is required to apply an enhancement prohibited by Blakely), the Court will impose an indeterminate sentence pursuant to 18 U.S.C. § 3553(a), and will also impose an alternative Guidelines sentence in the event the Guidelines are found to be constitutional after appellate review.
10. The undersigned will apply these principles on a case-by-case basis until I either achieve greater wisdom which causes me to reconsider or my superiors on the Eleventh Circuit or Supreme Court give me guidance.

August 17, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (12) | TrackBack

Interesting applications of Ameline

Though the Seventh Circuit's ruling in Booker declared the guidelines at least partially unconstitutional, only the Ninth Circuit's ruling in Ameline (details here) coupled such a decision with a ruling on severability as well. And now we are starting to see some interesting applications of Ameline:

1. In an unpublished decision in US v. Cortes, 2004 U.S. App. LEXIS 16784 (9th Cir. Aug. 13, 2004), the Ninth Circuit is able to affiirm a guideline enhancement despite Ameline's holding this way:

Cortes also contends in a supplemental brief that his sentencing enhancements for using a dangerous weapon and inflicting serious bodily injury violate the Sixth Amendment. We disagree. Because Cortes admitted all of the facts underlying the enhancements, the district court did not engage in improper fact-finding.

This brief decision is interesting and opaque because it is unclear in what setting defendant Cortes made these admissions, while it seems clear that he made them before Blakely made such admissions so obviously consequential.

2. In US v. Davis, 2004 U.S. Dist. LEXIS 16044 (C.D. Cal. Aug. 13, 2004), US District Judge William Rea in the context of a wire fraud sentencing first observes that "Blakely's premise is simple: a district court judge may only impose a sentence based on 'facts reflected in the jury verdict or admitted by the defendant.' While the court must apply Blakely to determine the proper method of sentencing, this is challenging because the Blakely analysis is extremely complex."

Then, after noting that Ninth Circuit's Ameline decision suggested convening a sentencing jury to estabish sentencing enhancing facts, Judge Rea observed that convening "a sentencing jury [in this case] will not resolve the constitutional infirmity under Blakely." Here's why, according to Judge Rea:

Defense counsel's reply briefly informs the Court that the government could not have charged Defendant with the 82 additional counts of wire fraud because the statute of limitations on those counts had already run. Thus, even if the trial occurred after Blakely, the government could not have presented the additional 82 counts to the jury. The Court will not allow the government to circumvent the statute of limitations through sentencing. Because these facts were barred by the statute of limitations and, thus, could not have been decided by the jury during trial, the Court will not allow them to get in through the back door as sentencing factors. A sentencing jury is not appropriate for this type of enhancement, which is based on the Defendant's alleged commission of 82 crimes in addition to those charged in the indictment.

Then, summing up his rulings, Judge Rea concludes with an interesting final decision about alternative sentencing:
For the forgoing reasons, the Court will sentence Defendant as scheduled on September 13, 2004 based on an eight point offense level without the aid of a sentencing jury. Additionally, the Court recognizes that the Supreme Court granted certiorari on United States v. Booker, 2004 WL 1535858 (7th Cir. July 9, 2004) and United States v. Fanfan, No. 03-47-P-H (D. Me. June 28, 2004), which raise the same issues as Ameline, and thus the Court will exercise its inherent authority to pronounce an alternative, indeterminate sentence. The Court requests that the probation officer prepare a revised pre-sentence report that reflects this ruling.

August 17, 2004 in Blakely Commentary and News | Permalink | Comments (2) | TrackBack

Forthcoming FSR Blakely issue

I am extremely pleased to report that I finally finalized the final edits on the (first) Federal Sentencing Reporter Blakely issue, entitled "The Blakely Earthquake." You can here download the cover of this FSR issue (which reflects exact page numbers for articles which have heretofore only been "forthcoming"):
Download fsr16_5_cover.pdf

At this link you can 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. The next FSR issue, also to be all about Blakely, is far in development and should be available before the Supreme Court hears Booker and Fanfan.

Though much prettier on the dowloaded cover, here's a handy list of the contents of the "The Blakely Earthquake."

Douglas A. Berman, Examining the Blakely Earthquake and its Aftershocks

Rachel E. Barkow, The Devil You Know: Federal Sentencing After Blakely
Nancy J. King & Susan R. Klein, Beyond Blakely
Stephanos Bibas, Blakely’s Federal Aftermath
Mark Osler, The Blakely Problem and the 3x Solution
J. Bradley O’Connell, Amazing Stories: Blakely v. Washington and California Determinate Sentences

DOJ Legal Positions and Policies in Light of Blakely v. Washington (July 2, 2004)
Concurrent Resolution passed by U.S. Senate (July 21, 2004)
Federal Public Defender Letter to the USSC (July 9, 2004)
Memorandum from Frank Bowman to USSC (June 27, 2004)
Memorandum from Frank Bowman to USSC (July 16, 2004)

August 17, 2004 in Blakely Commentary and News | Permalink | Comments (0) | TrackBack

For Shame ... I mean, Against Shame

As detailed here, a divided panel of the Ninth Circuit issued a very interesting opinion in US v. Gementera, upholding a sentence in which, as a condition of supervised release, the district judge required a convicted mail thief to spend a day standing outside a post office wearing a signboard stating, "I stole mail. This is my punishment." Now, commentator Dan Markel has produced this very interesting essay available today online at The New Republic entitled "Dirty Shame: The Ninth Circuit's dangerous endorsement of shaming punishments."

Dan makes a number of powerful arguments against shaming punishments and effectively assails the Ninth Circuit's decision in Gementera. But given the failed efficacy of our traditional approaches to punishment and our society's over-reliance on incarceration (background here), I am a bit more open than Dan to experimenting with various forms of alternative punishments. In other words, I think I am comfortable with a district judge using his or her discretion to impose a (relatively mild) shaming sanction in lieu of a lengthy imprisonment term.

Dan rightfully notes in his TNR piece that in Gementera "the shaming punishment was used as a supplement to incarceration, not as a substitute." However, the Ninth Circuit at the end of its statutory analysis was very careful to make clear it was simply approving the district courts' "sensible logic underlying its conclusion that a set of conditions, including the signboard provision, but also including reintegrative provisions, would better promote this defendant’s rehabilitation and amendment of life than would a lengthier term of incarceration." slip op. at 20 (emphasis added).

In other words, I read Gementera more as an embrace of judicial sentencing discretion and experimentation, rather than a broad endorsement of extreme shaming sanctions. But, for many of the reasons Dan astutely highlights, we should be wary of the Gementera decision being misused in potentially harmful ways.

I wonder what the wise folks over at Punishment Theory think about all this.

UPDATE: Dan Markel, whose longer writings on this topic and other important sentencing issues can be found here, was kind enough to send me some additional thoughts on what I consider to be a fascinating and important (non-Blakely!) topic. Thus, at some length, here is Dan's addendum:

Doug, like you, I'm not in favor of our infatuation with incarceration and I don't like the length of so many of our sentences for people who do belong in prison. I've written before about how to develop various alternatives to incarceration that are nonetheless compatible with retribution properly understood -- especially the use of guilt punishments and conditional sentences for nonviolent offenders (available here). My argument was about shaming being execrable, and while I'm not against some sentencing experimentalism, the district courts shouldn't get to make up anything they want and then stick a label on it, and get a blessing. There should be some effort made by judges to do their homework....

I have no trouble with how the court required the defendant to watch people make claims about their lost mail. But there's nothing reintegrative about that. Similarly, there was nothing reintegrative about the requirement that he go to express his remorse before a bunch of adolescents in high school. It would be one thing if this is something he volunteered to do; but he didn't challenge it on appeal because, as I understand it, he was put in the hobson's choice of having to spend 100 hours of "community service" being exhibited like a bearded lady in a circus, or do that. Just because he had the choice to do the talks at high schools or face a worse punishment doesn't make it sensible for us to impose that choice. What if the judge said wash my car, or cut off your left toe, and you can forgo further punishment? The choices have to be reasonable and reasonably tailored to the ends in mind.

In sum, I resist the conclusion that I am less open to alternatives to incarceration. I also resist the ascription of logic to a court that developed reintegrative provisions, or that this was for the benefit of the offender. Shaming hurts offenders, the studies show it, and it degrades us all.

Good points, which serve as yet another reminder of how much work there still is to be done on the theory and practices of punishment and sentencing without even thinking about Blakely.

August 17, 2004 in Criminal Sentences Alternatives, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Blakely news from Oregon

Just after complaining about slowed media coverage of Blakely earlier today, out comes this terrifically informative article in today's The Oregonian appropriately titled "Confusion reigns in federal, state courts."

The article does not break a lot of new ground in covering the federal sentencing story — though it does note that some local federal prosecutors "are reindicting some defendants in cases in which they plan to ask for longer sentences" and "have asked for juries to be impaneled to decide the sentencing in three cases." Most eye-opening, however, are these passages covering what Blakely means for state sentencing in Oregon:

In state court, Salem defense lawyer Jesse Barton, who has written manuals about the state sentencing system, said the implications for Oregon are "absolutely enormous." He said Blakely particularly affects cases in which judges determine during sentencing that the facts in a case make a defendant a "dangerous offender" — a classification that comes with a longer sentence.

It also could affect cases in which a person is convicted of multiple crimes and the judge, based on the facts in the case, hands down sentences that run consecutively instead of concurrently. Barton said he is already handling a half-dozen appeals for inmates convicted in state court. In those cases, judges added time to sentences based on the circumstances of their crimes. "There are hundreds of guys in prison right now doing unconstitutional sentences under Blakely — hundreds, maybe thousands," Barton said.

Although Blakely is not likely to have a significant impact on the most serious crimes, such as the violent person-to-person offenses that fall under Measure 11, state prosecutors said it may impact the way serious property crimes are handled.

August 17, 2004 in Blakely Commentary and News, Blakely in the States, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Blakely news from California

One of my exciting Blakely questions for week (details here) was whether there would be any big Blakely news from the states. Though I am not sure the California intermediate appellate court decision in People v. Vonner, 2004 WL 1813998 (Cal.App. 2 Dist. Aug. 16, 2004), qualifies as big news, it is worth noting. Consider the opinion's first paragraph:

Contrary to the numerous contentions in the deluge of supplemental briefs now being filed in the California Appellate Courts, it is not at all clear that the United States Supreme Court opinion in Blakely v. Washington has sounded the death knell for California sentencing laws. It remains to be seen whether the Determinate Sentencing Law has been bruised, battered, or born into a better world. Here we only conclude that Blakely does not impact a sentencing court's imposition of a full consecutive sentence for an enumerated violent sex offense. (Pen.Code, § 667.6. subd. (c).)

Here's how the court in Vonner explains the defendant's Blakely/Apprendi argument and the court's rejection of that argument:

Citing Blakely, appellant contends that the trial court erred in imposing a full consecutive six year term on count 2 (forcible lewd conduct) after selecting the midterm six year sentence for lewd act on a child committed several weeks before count 2.

Appellant asserts that a consecutive sentence is tantamount to an Apprendi "enhancement." We disagree. [We have] explained that section 667.6 is an alternate sentencing scheme, not an enhancement. It does not increase the penalty beyond the prescribed statutory maximum. "Apprendi is relevant only where a judge-made factual determination increases the maximum statutory penalty for the particular crime...." (People v. Cleveland (2001) 87 Cal.App.4th 263, 271.) That did not happen here.

Here the guilty verdicts subjected appellant to consecutive sentencing which the trial court was authorized to impose. The sentence was not based on any "fact" that the trial court found. The decision was based on the guilty verdicts and the statutory discretion given to the trial court by the Legislature. Appellant received less than the prescribed statutory maximum. He could have received a 16 year sentence.

Assuming, arguendo, that Blakely has some application in this context, any assumed error is harmless beyond a reasonable doubt. The jury found appellant guilty of forcible lewd conduct and lewd conduct. Although not required, it is undisputed that the offenses were committed weeks apart. Partial reversal for some type of new trial on the question of consecutive sentences would not be authorized by law and would be an exaltation of form over substance. Moreover, we ask, what fact would the jury be instructed to find which could serve as a predicate to the imposition of consecutive sentences?

August 17, 2004 in Blakely Commentary and News, Blakely in the States, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Professor Alschuler Speaks!

I am very pleased that now ready for posting and available for download below is a commentary by University of Chicago Professor Albert W. Alschuler entitled "To Sever or Not To Sever? Why Blakely Requires Action by Congress." (This piece is slated for publication in the October 2004 issue of the Federal Sentencing Reporter, which will be FSR's second rapid-fire special Blakely issue. The first special FSR Blakely issue is on its way to press and I will detail its full contents in a coming post.)

Professor Alschuler has been a long-time friend of FSR and a leading commentator on sentencing reform for over 25 years. See, e.g., Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U. Chi. L. Rev. 901 (1991); Albert W. Alschuler, Sentencing Reform and Prosecutorial Power: A Critique of Recent Proposals for “Fixed” and “Presumptive” Sentencing, 126 U. Pa. L. Rev. 550 (1978). I am very glad that he is quickly contributing his views on Blakely and that FSR will publish his efforts.

Professor Alschuler's article on Blakely is a wonderful read (despite the fact he seriously takes issue with the views expressed in my advice to Congress here). Throughout this article, Professor Alschuler makes numerous insightful observations with a particular emphasis on the key severability issue, and his piece culminates with a set of five proposals to enable Congress to fix the Blakely mess. Enjoy.
Download alschuler_blakely_commentary.doc

August 17, 2004 in Blakely Commentary and News | Permalink | Comments (0) | TrackBack

Blakely snippets

The media has dramatically slowed its coverage of Blakely, which is a shame because there are still many significant developments every day. For example, I still have not seen a single report on the Sixth Circuit's important order in Koch (details here), though perhaps the Sixth Circuit itself does not mind that few have noticed its plagiarism of the Fourth Circuit's (still unexplained) order in Hammoud.

The occasional media coverage, even when just providing snippets of news, continues to shed light on how Blakely is impacting the day-to-day world of sentencing. For example, this brief article from Tennessee notes the successful efforts of state prosecutors to get a rape defendant's sentencing increased after the sentencing judge had first given a lower sentence based on Blakely.

And this piece from the Grand Rapids Press likewise provides these interesting (though opaque) snippets of information about federal sentencing in Michigan:

US District Judge Robert Holmes Bell in Grand Rapids has ... issued two sentences. District Judge Gordon Quist, also in Grand Rapids, has declared the sentencing guidelines unconstitutional under Blakely, though he continues to adhere to them as a practical matter. The same is true for District Judge Richard Enslen of Kalamazoo.

Notably, this Michigan article, though published Monday, does not report on the Sixth Circuit's order last Friday in Koch, though it does note the Fourth Circuit's order in Hammoud. Also, the description of Judge Enslen's Blakely work is a bit too cursory and thus a bit inaccurate (details here).

The Michigan piece does get credit for these closing rhetorical flourishes in its complaints about the messiness of federal sentencing in the wake of Blakely:

The Supreme Court was stunningly irresponsible not to clarify what the Blakely decision means to the federal system.... The key question citizens should be asking: Why are justices still languishing on beaches while the federal court system languishes in doubt?

August 17, 2004 in Blakely Commentary and News | Permalink | Comments (0) | TrackBack

August 16, 2004

Question 4 answered: Eighth Circuit takes Pirani en banc

At least one of my exciting Blakely questions for the week (listed here) has been partially answered. Specifically, my sources report that the Eighth Circuit has officially granted, upon the court's own motion, rehearing en banc in US v. Pirani (background here). As with the previous order by the court to rehear en banc the panel decision in Mooney, the Eighth Circuit has only indicated that en banc argument "will be held at a time and place to announced."

With both Mooney and Pirani now officially vacated, the status of federal sentencing in the Eighth Circuit returns to being undefined. For three full weeks (and four fun-loving weekends) since the July 23 decision in Mooney, binding precedent in the Eighth Circuit was that the federal guidelines were wholly unconstitutional. Now we are back to square one until a new en banc ruling "at a time and place to announced."

August 16, 2004 in Blakely in Appellate Courts, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

District judges keep up the good work

Perhaps if your surname is Holmes and you are a judge you have no choice but to perform at a high level. Whatever the explanation, Chief Judge Sven Erik Holmes of the Northern District of Oklahoma continues his impressive Blakely work through a recently entered order in US v. Leach, No. 03-CR-114-H (N.D. Ok. Aug. 13, 2004), which can be downloaded here:
Download us_v. Leach.pdf

The order in Leach contains all of the impressive and thoughtful reasoning set forth in Judge Holmes' decision last week in US v. O'Daniel (details here and commentary here). But Leach is a distinct and important read in part because the case involves an embezzlement offense with interesting sentencing issues relating to the scope of the crime and amount of loss. In Leach, Judge Holmes reiterates his view, based on his reading of Blakely and waiver analysis, that he can constitutionally still serve as a sentencing factfinder, but must do so using a higher evidentiary standard and with the rules of evidence in force. In other words, Judge Holmes has devised an interesting (and I think jurisprudentially sound) way to "split the Blakely baby."

As indicated at the end of the opinion, the defendant in Leach was ultimately unhappy with the outcome of Judge Holmes' Blakely baby splitting; the defendant has already announced her intention to appeal to the Tenth Circuit.

August 16, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

Our moral blind spot?

A great friend alerted me to a great article in the New York Times Magazine that I missed in yesterday's news review (here). In Decarcerate, commentator Jim Holt suggests that the United States' heavy reliance on punishment by imprisonment may be our society's biggest "moral blind spot." Through a tight review of both the history and theories of imprisonment, the article does a terrific job highlighting why the author thinks mass incarceration in America "is starting to look less like a necessary evil and more like a peculiar institution."

August 16, 2004 in Blakely Commentary and News | Permalink | Comments (1) | TrackBack

Exciting Blakely question for the week ahead

Now getting back into the swing of things after time away, I am gearing up for what may be a big Blakely week. Here are just a few exciting questions for the week ahead:

1. Will the Fourth Circuit finally issue opinions in support of its August 2 order in Hammoud (background here and commentary here)?

2. Will the Sixth Circuit issue opinions in support of its (nearly identical) order in Koch (background here)?

3. How will the many district judges in the Second Circuit who previously declared the guidelines unconstitutional react to the Second Circuit's decision in Mincey requiring application of the guidelines (background here)?

4. Will the Eighth Circuit clarify the state of the law in that jurisdiction in the wake of its decision to hear Mooney en banc at some still unspecified time (background here)?

5. Will there be any big Blakely news from the states, especially with the annual meeting of the National Association of Sentencing Commissions taking place on Monday and Tuesday (background here)?

6. Will any judge write an opinion as fun to read as Judge Joseph Goodwin's recent opinion in US v. Johnson (details here)?

In short, the Blakely soap opera continues, and this week's episodes should continue to be entertaining.

August 16, 2004 in Blakely Commentary and News | Permalink | Comments (2) | TrackBack

August 15, 2004

Mark your calenders for USSC meeting

As noted here, the US Sentencing Commission has scheduled a public meeting for Wednesday, August 25, 2004 at 10:00 a.m. The USSC has detailed a full agenda for the meeting (which, notably, does not expressly mention any Blakely issues) and indicates that it expects "the public meeting will last approximately thirty minutes" (which, notably, is not much time to talk about Blakely issues).

Neverthless, I have to think the USSC's discussion at this meeting must cover some Blakely ground. And, since this is a public meeting, I assume interested individuals could attend the meeting —which is to be held at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E., in Washington DC — to hear about the USSC's work and plans. Insightfully, a lawyer has written to me to suggest that this meeting presents "an opportunity for concerned members of the legal community to show up and put pressure on the commission to use the current climate to start to rethink sentencing ... and [to] start calling for responsible, pro-active, action. Nothing like a room full of people to have more impact than even the most impressive letter."

On this front, I have heard rumors that the USSC is working hard on proposals for federal sentencing reform if (when?) the Supreme Court declares some or all of the federal guidelines unconstitutional. Though the USSC should make public its plans and efforts so that this critical body can have a more central role in the on-going debates over the future of federal sentencing (background here), I was happy to hear that the USSC is at least actively thinking through a "plan B."

August 15, 2004 in Blakely Commentary and News, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Catching up on Blakely news

Happily back at my home office, I finally had a chance this morning to read some of this week's Blakely newspaper stories (collected here), and I wanted to highlight and comment on a few stories of note:

1. According to this article, DOJ is pushing the concept of announcing an alternative sentence treating the federal guidelines as advisory. Recall that this concept has now been adopted in the Sixth Circuit as well as the Fourth Circuit (details here), even though district judges see little sense in the approach (details here and here).

I guess I should not be surprised DOJ is behind the peculiar orders in the Fourth and Sixth Circuits, since the approach being adopted does not involve recommending that judges announce a third alternative sentence applying the guidelines without (arguably unconstitutional) enhancements. Interestingly, this article details that US District Judge Patrick Duffy in South Carolina has had the good sense to take the alternative sentencing approach to its logical extreme by announcing 3 sentences.

2. This thoughtful article highlights the challenges Blakely has created for Washington state prosecutors considering "exceptional sentences" against two Seattle teens accused of killing a school classmate. The article is interesting not only because it raises the issue of judges' authority to make Blakely-compliant procedural modifications without express legislative authority, but also because it highlights that, by influencing charging and plea negotiation decisions, Blakely will impact many more cases than basic sentencing statistics will ever reveal.

3. This fascinating article focuses on defendant Freddie Joe Booker's place in the spotlight now that his case will come before the Supreme Court to consider Blakely's impact on the federal guidelines. This article has a lot of rich details and insights (including the fact that Booker would likely not be released from federal prison until he is at least 70 years old even if he wins his Blakely claim). But this insightful passage at the end of the story about lurking retroactivity issues particularly caught my attention:

While Blakely and Booker will affect ongoing cases in district and appeals courts, it's not clear whether federal prisoners whose appeals have been exhausted will be able to retroactively re-open their sentences. That question is being pursued by students of Judy Olingy, clinical associate professor at the UW-Madison Law School's Remington Center. Five students who are part of the center's "Oxford Project," as it is informally known, spend 12 weeks working on the cases of federal prisoners at Oxford Federal Correctional Institution in Adams County. "I think there are some good, solid, strong arguments about why it should (apply retroactively)," Olingy said. But she said courts might deny those types of appeals simply because of the huge number of prisoners who would file them if allowed.

Finally, after reading Dahlia Lithwick's terrific NY Times op-ed "Activist, Schmactivist", I am trying to decide whether Blakely is an activist or "re-activist" decision. Perhaps the label "pro-activist" fits best, although the (obviously Yiddish) label "schmactivist" also sounds pretty good to me.

August 15, 2004 in Blakely Commentary and News | Permalink | Comments (0) | TrackBack