August 17, 2004
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.
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?
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.
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 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."
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.
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."
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:
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 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."
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.