August 28, 2004
Formalism meets functionality: An Ohio case study
Many have previously noted the formalism in the Blakely/Apprendi rule, often while highlighting ways legislatures might evade the rule's strictures. (Consider this commentary on Blakely by Professor Sherry Colb and recall that Justice O'Connor's dissent in Apprendi stressed these concerns.) Though only time will tell if we will see legislative efforts to evade the Blakely rule, in the meantime Blakely's formalism will create a host of challenging questions (headaches?) for functional sentencing law.
Indeed, as I reflect on modern sentencing reforms, I have come to think that Blakely is so consequential and also so confusing because functionality, not formalism, is the hallmark of many facets of guideline sentencing. For example, as noted in this US Sentencing Commission discussion paper, the controversial "relevant conduct" rules in the federal system were devised as a functional solution to the dilemmas of both real-offense and charge-offense sentencing. More broadly, judges have routinely been placed at the center of guideline sentencing systems because judges seem functionally well suited to make the many nuanced fact and value judgments that are implicated in sentencing decisions. But now, says the Blakely court, regardless of who might be the most functional fact-finder, the Sixth Amendment formally demands that any fact (other than a prior conviction) which can increase a defendant's effective maximum sentence must be found by a jury or admitted by the defendant.
As I reviewed the very interesting Ohio opinions in State v. Taylor and State v. Quinones (details here), I came to appreciate how challenging it will be in Ohio to map Blakely's formalism on to Ohio's functional sentencing provisions. Ohio has an interesting structured sentencing system which avoids grids by establishing basic (and relatively broad) sentencing ranges for felonies of different degrees. Then, after setting forth these ranges, Ohio Revised Code § 2929.14 has these interesting (and functionally sensible) provisions:
(B) Except [under certain specified circumstances] the court shall impose the shortest prison term authorized for the offense ... unless (1) The offender was serving a prison term at the time of the offense, or the offender previously had served a prison term [and/or] (2) The court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others.
(C) Except [under certain specified circumstances], the court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense ... only upon offenders who committed the worst forms of the offense [or] upon offenders who pose the greatest likelihood of committing future crimes....
In other words, it seems that Ohio's sentencing laws require a judge to impose the statutory minimum sentence unless he or she makes certain findings under 2929.14(B), and a judge may not impose the statutory maximum sentence unless he or she makes additional findings under 2929.14(C). In addition to being impressed with the elegant good sense of this system, I am struck by how hard it is to understand exactly what Blakely means, or might mean, for these provisions.
At first blush, because additional "findings" are required for imposing more than the minimum sentence and for imposing the maximum sentence, it would seem that Blakely is implicated every time an Ohio judge seeks to impose a sentence above the statutory minimum and/or the statutory maximum. This seems to be the instinct of the court in State v. Quinones, 2004 WL 1903250, 2004-Ohio-4485 (Ohio App. Aug. 26, 2004), which vacated and remanded an imposed maximum sentence for "resentencing in light of Blakely" after noting that a jury "did not make a finding that Quinones had committed the worst form of the offense or that he posed the greatest likelihood of recidivism, nor did he admit to either."
However, the findings required by Ohio law under 2929.14(B) and (C) do not all look like classic "factual" findings. Deciding what sentence might "demean the seriousness of the offender's conduct" or what behavior consitutes the "worst form of the offense" seems like a value judgment more than a factual finding. (Or maybe this should be called a mixed question of sentencing fact and law.) Moreover, these judgments might be made solely, or at least largely, on the basis of facts found by the jury at trial or admitted by the defendant in a plea agreement. Thus, upon reflection I can see some merit in Judge Corrigan's suggestion in State v. Taylor, 2004 WL 1900333, 2004-Ohio-4468 (Ohio App. Aug 26, 2004) (details here), that these provision of Ohio law might be able to skate around Blakely.
Any additional thoughts from Ohioans out there (who I know are reading based on this lengthy and insightful comment)?
Still more on the prior conviction exception
As noted before here, the scope and application of the (theoretically shaky) Almendarez-Torres "prior conviction" exception to the Apprendi/Blakely rule will need clarification before long. And, as also noted before, the Supreme Court just before Blakely was handed down granted cert in a case, Shepard v. US, 03-9168, that could be a vehicle for revisiting Almendarez-Torres.
Thanks to the folks at the SCOTUS Blog, we can now read the NACDL's amicus brief in Shepard via this link here; sure enough, the brief make a broadside attack on the Almendarez-Torres "prior conviction" exception. Among the interesting brief's key assertions are that Shepard "is an excellent vehicle for deciding whether Almendarez-Torres should be overruled." The brief also says:
The existence of prior convictions is not meaningfully distinguishable from any other factual finding necessary to increase a defendant’s sentence beyond the otherwise applicable maximum. Sentencing enhancements made on that basis must therefore be authorized by a jury verdict or a defendant’s admission. Almendarez-Torres v. United States, 523 U.S. 224 (1997), which reasons otherwise, was wrongly decided, has been undermined by subsequent decisions of this Court, and should now be expressly overruled....
[N]one of the purported justifications for a recidivism exception provide a reasoned basis for that "exceptional departure" from the general rule requiring jury findings for facts used to elevate a sentence beyond the otherwise-available maximum.
In a footnote, the NACDL brief suggests that requiring recidivism to be proven to a jury would have "far more modest effects" than the Blakely ruling. This might technically be true; but the many post-Blakely cases affirming convictions on the basis of the prior conviction exception reveals that the impact of reversing Almendarez-Torres would still be profound.
For some recent cases relying on the prior conviction exception to affirm enhanced sentences, see People v. Winn, 2004 WL 1903428 (Cal. App. Aug. 26, 2004) ("Blakely is an extension of Apprendi. Apprendi specifically excluded recidivist findings from its holding that a jury must determine any facts that aggravate a sentence. Moreover, Apprendi violations are subject to harmless-error analysis. Central to most of the trial court's analysis are the defendant's prior convictions, which are not subject to Apprendi or Blakely. Only a single factor is needed to impose the upper term. Thus, to the extent that the court made findings about the dangerous nature of the offense that are not reflected in the jury's verdict, it was harmless beyond a reasonable doubt."); US v. Losoya-Mancias, 2004 WL 1903390 (D.N.D. Aug. 25, 2004) ("There are a multitude of complex questions raised by the Supreme Court's decision in Blakely v. Washington..... However, despite the fate of criminal justice and federal sentencings in the wake of Blakely, it is well-understood that Blakely did not disrupt the maxim that courts may take into account the fact of a prior conviction without the use of a jury.... An exception has been carved out for prior convictions and that was the express holding in Almendarez-Torres. In this case, the enhancement to Mancias' sentence was because of his prior felony convictions. This Court's finding that Mancias is a career offender under the Sentencing Guidelines was based on his prior convictions, which convictions were appropriately used for purposes of enhancing Mancias' sentence.")
Blakely back in the news
The coming week should have plenty of Blakely news with the Solicitor General's office and the US Sentencing Commission both due to submit briefs in the Booker and Fanfan cases on Wednesday. In the meantime, the newspapers are again finding other noteworthy Blakely stories.
From Tennessee articles here and here report on the recommendation made by the Task Force appointed by Governor Phil Bredesen that a special session of the Tennessee General Assembly is not needed to deal with Blakely. Background on the Tennessee Task Force can be found here and here, and this recent news article thoughtfully explains why the "Task force on sentencing has its work cut out for it." This article also details the variations in Tennessee sentencing practices in the wake of Blakely:
[Cleveland attorney James F.] Logan said some judges are ignoring Blakely. Others, he said, insist it mandates only minimum sentences, ignoring even prior convictions that the nation's high court clearly said could be used to boost sentences. At least two judges are now holding separate sentencing hearings, allowing juries to decide which factors a judge can use, if any, to ratchet up a criminal's sentence. They are doing so even though there is no law on the books that allows that process, known as a bifurcated hearing, in any case other than those in which the death penalty or life without parole is sought as punishment.
In other state news, this article discusses a peculiar ruling from a Michigan state judge who apparently declared Michigan's state sentencing guidelines unconstitutional in order to be able to sentence a child molester to a much longer prison sentence than the guidelines provided.
From the federal desk come two Blakely stories out of the Eighth Circuit. This article discusses a factually and legally interesting case involving a former Kansas City pharmacist who received a 30-year prison term for diluting chemotherapy drugs. And this article discusses a North Dakota perjury case in which all parties agreed to put sentencing on hold until November 10 with the hope that federal sentencing law will be clearer at that time.
August 27, 2004
More guidance from the 9th Circuit
We know that, pending decisions in Booker and Fanfan, at least four circuit courts are trying to proceed with business as usual in applying the federal sentencing guidelines. But, of course, in the Seventh and Ninth Circuits binding precedents require coping with a new (and uncertain) post-Blakely sentencing reality. Today in US v. Castro, No. 03-50444 (9th Cir. Aug. 27, 2004), the Ninth Circuit issued a per curiam opinion which helps sort out more of the post-Blakely litigation uncertainty. Here's the heart of what the court says:
In US v. Ameline, 376 F.3d 967 (9th Cir. 2004), we held that Blakely v. Washington, 124 S. Ct. 2531 (2004), applied to the US Sentencing Guidelines and, thus, the imposition of an enhanced sentence on the basis of judge-found facts violates the Sixth Amendment....
As we recognized in Ameline, “the Blakely court worked a sea change in the body of sentencing law.” 376 F.3d at 973. Whatever the outcome of the Supreme Court proceedings in Booker and Fanfan, those decisions will likely have a profound impact upon our disposition of sentencing issues in direct criminal appeals and will certainly affect the continued vitality of Ameline. Accordingly, in a case in which the defendant appeals both his conviction and his sentence, if we decide to affirm the conviction and if the sentence imposed implicates Blakely or Ameline, we would ordinarily withhold our decision until the Court decides Booker and Fanfan.... Similarly, if we have already issued our decision in such a case, but have not yet issued the mandate, we would ordinarily stay further proceedings....
Here, however, circumstances prompt us to act on the sentencing issues at this point, instead of staying proceedings pending the Court's decisions in Booker and Fanfan. Had Castro’s sentence been based only on the facts that were found by the jury and not on those found by the district judge, he would already have completed serving his sentence. Where the portion of the sentence that is clearly unaffected by Blakely and Ameline has expired or will expire shortly, we deem it appropriate to remand the case to the district court for whatever action it determines to be proper under the circumstances. Among the options available to the district court, within the exercise of its discretion, would be to reconsider its sentence or to stay further proceedings pending the outcome of Booker and Fanfan, with or without granting bail to the defendant. FN3
FN 3: In Ameline, we held that we are not precluded from addressing Blakely issues even when a defendant raises them for the first time after the case is submitted. 376 F.3d at 972-74. Although we have the authority to identify and consider such sentencing issues sua sponte, it would be appropriate for parties with pending cases to inform this court by letter at any time, jointly or severally, when a potential Blakely or Ameline issue exists, or when particular circumstances warrant action on our part prior to the Supreme Court’s decisions. We note with approval that Castro filed a letter advising this court that his re-sentencing was affected by Blakely. Absent particular circumstances warranting earlier action, a motion to file a supplemental brief or a supplemental petition raising Blakely or Ameline issues will ordinarily be denied without prejudice to renew following the Supreme Court’s decisions. A petition for panel rehearing or for rehearing en banc raising Blakely or Ameline issues will also likely be held in abeyance in most cases. If further proceedings have been stayed, no such petition need be filed until the stay expires or is terminated. If no stay has been issued, either party may request that one be entered.
Blakely's impact in Ohio
As noted here, yesterday's Ohio appellate court ruling in State v. Taylor, 2004 WL 1900333, 2004-Ohio-4468 (Ohio App. Aug 26, 2004), is noteworthy and interesting for non-Blakely reasons. But it was the Blakely talk in the separate opinions of Judge James Sweeney and Judge Michael Corrigan that first caught my eye. Here are some highlights.
Judge Sweeney begins his concurring opinion in Taylor by noting that he is writing separately "to explain my position as to the resolution of the fourth assignment of error," which raised Blakely issues. Then, after reviewing the Blakely case, he explains:
In this case, the court could only impose the maximum penalty by making specific judicial findings beyond those either determined by a jury or stipulated to by the defendant. [FN1] Ohio law simply does not allow the trial court to impose maximum sentences (or certain other aspects of sentencing) in its discretion. Maximum sentences, consecutive sentences, and certain other sentences are reserved for offenders under certain and statutorily specified circumstances. Accordingly, we are required to review sentences de novo and not under the abuse of discretion standard. Thus, the maximum sentence is not within the "statutory range" of sentences that a trial court may impose in its sole discretion. Consequently, I believe an argument can be made that Ohio's sentencing law, in some respects and applications, is susceptible to the same constitutional violations that the U.S. Supreme Court discussed in Blakely.
FN1. The specific judicial findings being either that the offender committed the worst form of the offense or that he posed the greatest likelihood of committing future crimes. R.C. 2929.14(C). Although R.C. 2929.14(C) further allows for the imposition of maximum sentences "upon certain major drug offenders under division (D)(3) of this section, and upon certain repeat violent offenders in accordance with division (D)(2) of this section" that portion of the statute is not applicable in this case. I do not believe that Blakely affects the trial court's ability to consider other facts relative to sentencing, including the offender's age and criminal record among other factors contained in R.C. 2929.12. Nonetheless, the law does not allow the court to impose the maximum sentence based upon such facts in the absence of the findings required by R.C. 2929.14(C).
These statements alone make the Taylor decision quite interesing. But then Judge Michael Corrigan, concurring in judgment only in part and dissenting in part, gets his say. To begin, Judge Corrigan disputes the majority's (non-Blakely) holding, noted here, by asserting that the sentencing court properly "found that Taylor posed the greatest likelihood of reoffending, and it gave reasons in support of that finding based on Taylor's extensive criminal record, his age (22 years-old), and lack of remorse" justified a maximum sentence under Ohio law. He then turns to Blakely, explaining that though he is "loathe to make broad pronouncements about Blakely's applicability to the Ohio sentencing statutes, the concurring opinion demonstrates that the issue is now joined." Consequently, Judge Corrigan weighs in with these "initial thoughts":
For the most part, Blakely has no applicability to Ohio sentencing statutes. This is because Ohio uses definite sentencing within minimum and maximum ranges for particular classes of felonies as opposed to guidelines used in the state of Washington which set maximum ranges within particular types of offenses in a class of felonies. For example, in Ohio a first degree felony is punishable by three, four, five, six, seven, eight, nine or ten years in prison. Unlike Washington, Ohio's sentencing statutes do not prescribe a prison term based on a point system relating to the offender's conduct. The Ohio trial judge has the discretion to sentence anywhere within the range, subject to statutory findings for imposing the maximum sentence....
To the extent that Ohio uses sentence enhancements, I tend to believe Blakely is not a problem. Nearly all sentence enhancements used in Ohio are charged in the indictment; for example, gun specifications, repeat violent offender or major drug offender specifications. That being the case, the offender would either plead guilty to the specification or the jury would make a factual finding on the specification. And it bears noting that sexual predator issues do not involve "punishment" for purposes of double jeopardy, so hearings on the predator classification would not be an issue.
Likewise, Blakely should not be an issue for consecutive sentencing. The federal courts have consistently held that the imposition of consecutive sentences does not raise issues under the Sixth Amendment as long as the individual sentence for each count does not exceed the maximum....
As for the findings required to impose the maximum sentence in a given case, those findings do not entail additional fact-finding in the sense that would implicate Blakely.... A finding that the offender committed the worst form of the offense would be based purely on the facts adduced at trial or pleaded to in the indictment. Recidivism factors like prior offenses need not be established by the jury, as the Supreme Court has specifically stated that prior convictions are not subject to the jury trial rule (there being obvious Fifth Amendment problems with the use of prior convictions when the accused does not testify).
Consequently, I believe the concurring opinion's statement that "the court could only impose the maximum sentence by making judicial findings beyond those either determined or stipulated to by the defendant" to be only partially correct. As Blakely makes clear, the sentencing court may still rule on those facts that are deemed important to the exercise of sentencing discretion. Sometimes, those facts do not present themselves until sentencing; for example, the vindictive offender who verbally or physically assaults the court during sentencing may show a lack of remorse or that he is a danger to the public. Those are factors that may be considered when imposing the maximum sentence, and they do not have to be determined by a jury. Other admitted factors, like an offender's age, may be stipulated.
The offender's age, extensive criminal record and lack of remorse as shown in this case are demonstrable facts that the judge could validly consider without violating Blakely. I would therefore find that the court did not err by imposing the maximum sentence.
Whew... I sure am glad that Judge Corrigan is "loathe to make broad pronouncements about Blakely's applicability to the Ohio sentencing statutes" or else I might have run out of room on this blog for his "initial thoughts."
I hope to post more about Blakely and my home state when I have time this weekend to fully process Judge Corrigan's interesting (and debatable) "initial thoughts" about Blakely's impact in Ohio. Also relevant to this discussion will be another decision from the same Ohio appellate court, State v. Quinones, 2004 WL 1903250, 2004-Ohio-4485 (Ohio App. Aug. 26, 2004) which was also handed down yesterday.
Fascinating Ohio case (with lots of Blakely talk)
Ohio has been identified as a bellweather state in the upcoming national election (and my law school has created this cool Election Law site partially as a reflection of this reality). But now it appears that Ohio may become a Blakely bellweather: in addition to the thoughful work of OSU alum Judge Sutton in Koch (basics here), yesterday an Ohio intermediate court in State v. Taylor, 2004 WL 1900333 (Ohio App. Aug 26, 2004) issued an opinion which includes the most extended and thoughtful state court discussion of the impact of Blakely on a state sentencing system.
Because State v. Taylor, 2004 WL 1900333 (Ohio App. Aug 26, 2004), is both factually and legally rich, it merits two posts. In a post later today I will focus on the extensive Blakely analysis in the separate opinions of Judge James Sweeney and Judge Michael Corrigan. But first the opinion for the court, authored by Judge Anne Kilbane, deserves independent attention.
In Taylor, a jury found the defendant guilty of possession of drugs, and the sentencing judge imposed the maximum prison term available for a fourth degree felony. On appeal, Taylor claimed the judge's findings and reasons to support the maximum sentence, as required by Ohio law, were inadequate or improper. As Judge Kilbane explained, the court concluded that it "need not address whether the judge's determination was adequate, because we agree that it was improper."
The judge's determination was deemed improper as a result of a colloquy with defendant Taylor during which Taylor's lawyer instructed him not to answer a question seemingly related to charges on which he had been acquitted. At the end of the colloquy, the sentencing court asserted: "I find for the record he's not showing any remorse, he's served a prior prison term, and this is his fourth adult case. Mr. Taylor, I guarantee that you will offend again and therefore I feel that a maximum prison term in this case is necessary to protect the public from future crimes."
On appeal, the State of Ohio asserted that "the judge took into account Taylor's prior convictions to support the required finding that he posed the greatest likelihood of committing future crimes and, therefore, merited the maximum sentence." But the Ohio appeals court was not convinced:
[T]his colloquy also shows that the judge's sentencing decision was influenced by Taylor's refusal to respond to questioning about the money found in the car and on his person after the accident. The judge rejected Taylor's assertion of his constitutional right against self-incrimination on the grounds that the verdict had already been reached, and he found, without explanation, that Taylor's refusal to answer showed a lack of "remorse."
Regardless of whether the willingness or refusal to answer questions is evidence of a defendant's state of remorse, he retains the right against self-incrimination through sentencing, [Footnote 14: Mitchell v. United States 526 U.S. 314, 321 (1999)] and it is improper for a judge to punish a defendant for exercising a constitutional right. Moreover, judges must avoid even the appearance that sentencing decisions are tied to a defendant's exercise of constitutional rights, because such an appearance deters defendants from asserting those rights. Because the issue involves a constitutional right, we can uphold the finding only if we find, beyond a reasonable doubt, that the judge would have imposed the same sentence absent the error.
The colloquy shows an unavoidable juxtaposition between Taylor's refusal to answer and the judge's imposition of sentence. At the very least, a reasonable person could draw an inference ... that the sentencing decision was related, at least in part, to Taylor's refusal to answer the question. One cannot say, beyond a reasonable doubt, that the sentencing decision was not affected by his exercise of a constitutional right. One might even say that the colloquy shows that the judge imposed a more severe sentence on Taylor because he refused to admit he committed offenses of which he had been acquitted, and that the judge intended to sentence him for the acquitted offenses.
In either case, the imposition of sentence is tainted by the judge's apparent belief that Taylor had no constitutional right to assert, and his apparent umbrage at Taylor's assertion of that right. The judge erred when he determined that Taylor did not have a constitutional right to avoid self-incrimination at sentencing, and in determining that the exercise of that constitutional right was an aggravating factor in sentencing.
Because of this conclusion, the court was officially able to duck directly confronting Blakely issues, even though the "jury did not make a finding that Taylor posed the greatest likelihood of recidivism, nor did he admit such a thing." The court said "such [Blakely] issues can be raised on remand." However, as will be discussed in a subsequent post, Judges Sweeney and Corrigan wrote separately in Taylor because they apparently had a lot to say about Blakely.
Distinguishing the federal system structurally?
In Koch, Judge Sutton's defense of the federal guidelines for the Sixth Circuit en banc majority (details here) goes to great length to highlight distinctions between the Washington guideline system at issue in Blakely and the federal guideline system. Particularly noteworthy is Judge Sutton's extended efforts to spotlight (and give legal significance to) structural differences in who created these guideline systems, and his emphasis on the US Sentencing Commission's placement in the Judicial Branch.
I find this portion of Koch fascinating because, in my own writings, I have stressed the significance and role of different sentencing lawmaking institutions, see A Common Law for This Age of Federal Sentencing: The Opportunity and Need for Judicial Lawmaking, 11 Stan. L. & Pol'y Rev. 93 (1999), and I have also urged sentencing commissions to take a proactive and leading role in developing sentencing procedures. See Appreciating Apprendi: Developing Sentencing Procedures in the Shadow of the Constitution, 37 Crim. L. Bull. 627 (2001). But, Judge Sutton's structural defense of the federal system in Koch includes one particular passage that could alone justify a dozen more law review articles. He says:
While it may be true that agencies are no less capable of violating the Sixth Amendment than legislatures, the Guidelines come from the very branch of government that all nine Justices of the Court agree has long exercised considerable discretion over sentencing determinations based on the same kinds of factual determinations that the Guidelines ask federal courts to make. If federal judges, in other words, may consider facts that increase sentences in an indeterminate sentencing regime, is it not permissible for this branch of government collectively to channel the consequences of these facts based on their group experience?
This passage is so interesting because it raises a host of fascinating theoretical and factual issues. Fundamentally, of course, we start with curious questions of how and why the scope and reach of an individual's Sixth Amendment and Due Process rights would turn on the way in which criminal sentencing laws are written and enacted. Then we have to consider whether it has ever been accurate to describe the USSC's work as an effort by the judiciary to "collectively channel ... their group experience" in sentencing.
If the federal sentencing guidelines were written by the Judicial Conference of the US — as Professor Kate Stith and Judge Jose Cabranes have recommended in their wonderful book Fear of Judging (at p. 159) — I would find Judge Sutton's question above deserving of extended attention. But, as evidenced by judicial griping since the federal guidelines became law, I doubt many federal judges would say the USSC has in fact developed sentencing laws that channel their collective experiences.
Moreover, as Steve Chanenson has so astutely noted in his recent article (described here and revised version here), Congress' recent passage of the PROTECT Act has constrained and transformed the USSC to make it more like a "traditional" agency and less like a group of judges making sentencing rules for themselves. Recall that the PROTECT Act changed the requirement that the seven-member USSC have at least 3 judges to now provide that the USSC cannot have more than 3 judges. Some have suggested that this change alone entails that Mistretta, which Judge Sutton emphasizes in Koch, is no longer good law.
In short, whatever we think theoretically of the distinction Judge Sutton spotlights, it is not a distinction that comfortably describes the modern reality of the federal sentencing system. And, of course, Judge Martin's dissent in Koch accuses the majority of emphasizing "a distinction without a difference":
I presume that the majority would agree that were the challenged provisions of the Guidelines enacted by Congress in the first instance, they would be unconstitutional under the rule announced in Blakely. I fail to see how the fact that Congress delegated its authority to the Sentencing Commission to set presumptive sentencing ranges saves the federal scheme from constitutional attack.
August 26, 2004
More Blakely insights from NACDL
I just noticed that over at this Blakely page of the website of the National Association of Criminal Defense Lawyers you can find copies of three Blakely-related articles from the latest issue of its Champion magazine.
The articles are "An End to the Federal Sentencing Guidelines?" by Steven G. Kalar, Jane L. McClellan and Jon Sands, "Drawing the Line in Crawford and Blakely" by Jeffrey L. Fisher, and "The Kansas Sentencing Guidelines" by Randall L. Hodgkinson. All three pieces look like very valuable reads.
As I have noted in few older posts (example here), many states in recent years have taken steps to lessen sentences and expand treatment-centered alternatives to incarceration. And, as highlighted in this article from Governing Magazine, from Alabama to Maryland to Michigan to Texas, Republicans have been leading proponents of the modern shift from penal retribution toward rehabilitation.
After some important legislative action in California Tuesday, we will soon discover if Governor Arnold Schwarzenegger plans to jump on this bandwagon or to again play the Terminator. Here are some key parts of this Los Angeles Times article discussing these developments:
Signaling a sharp turn in attitudes about rehabilitating state prisoners, lawmakers Tuesday approved a sweeping new program to give inmates more schooling and job training to better prepare them for release. By the slimmest of margins, the state Assembly endorsed a bill aimed at reducing the huge proportion of ex-convicts who commit new crimes or parole violations and wind up back behind bars. If signed by the governor, the bill would trigger "an unprecedented shift" in the mission of state prisons, an Assembly analysis said....
A spokesman for Gov. Arnold Schwarzenegger said the governor had no position on the bill. At the Department of Corrections, however, officials were opposed for fiscal reasons. They said the legislation would create an onerous and costly new burden, requiring them to craft an individualized education and job-training plan for each inmate. "We are committed to providing a range of rehabilitation opportunities for inmates," said spokeswoman Margot Bach. "But this sort of individualized approach would be difficult, considering that we have 160,000 inmates." Bach said no official cost estimate was available but said the changes would "run in the tens or hundreds of millions of dollars." An Assembly analysis of the bill predicted costs of at least $400 million a year.
Notably, there is also an opportunity for President George Bush and the federal Republican leadership to join on-going efforts to rehabilitate rehabilitation. Earlier this year (in fact the day after Blakely was decided), the Literacy, Education, and Rehabilitation Act (H.R. 4752) was introduced in the House. As I understand it, LERA would award federal prisoners additional credit — up to 60 additional days per year beyond the 54 days per year already awarded — toward the service of a sentence for participating in designated educational, vocational, treatment, assigned work, or other developmental programs. The Federal Prison Policy Project, a nonprofit organization working on prison reform, has a useful summary of LERA here, as well as additional information about LERA on its main website.
Interesting facets of the Koch dissent
Of course, the big news from the Sixth Circuit's Koch decision (details here) is Judge Jeffrey Sutton's majority opinion, which makes a spirited defense of the federal guidelines in the face of Blakely (and makes no defense of the Sixth Circuit's curious order in Koch recommending the announcement of alternative sentences). But the dissent, authored by Judge Boyce Martin and joined by Judges Daughtrey, Moore, Cole, and Clay, has a number of interesting and noteworthy facets. Here are just a few of many possible observations on this front:
1. Politics as usual? Unlike the unusual coalitions of Justices in Blakely, the decision in Koch nearly reflects the judicial equivalent of a "party-line vote." If my calculations are correct, all five judges joining the Koch dissent were appointed by Democratic Presidents, while seven of eight judges in the Koch majority were appointed by Republican Presidents(Judge Gilson is the exception).
3. Can a dissent have dicta? Interestingly, the last three pages of the dissent address whether a Blakely claim can qualify as plain error. Though it is said that history is written by the winners, apparently the Koch dissenters hope that plain error doctrine can be written by the losers.
4. Better not to decide? Amusingly, before reaching out to address plain error, the dissent makes a spirited argument that "the most appropriate course of action would be to withhold our decision until the Supreme Court has spoken." Indeed, the harshest words in the dissent are at the outset when Judge Martin asserts that the "majority’s opinion in this case amounts to nothing more than an exercise in futility and a waste of time and resources, in light of the Supreme Court’s grant of certiorari" in Booker and Fanfan.
5. The duties of lower court judges? Though necessarily a secondary issue to the merits, so much of the post-Blakely, pre-Booker/Fanfan jurisprudence wonderfully spotlights the challenges for lower court judges. As noted before, Judge Sutton invokes Learned Hand for the proposition that circuit courts ought not anticipate the overruling of Supreme Court precedents. But Judge Martin responds by asserting that, in Koch, "the majority ignores our very duties as United States Circuit Judges:"
Having insisted upon declaring its view regarding the applicability of Blakely to the Guidelines, rather than – as I would do – awaiting the Supreme Court's impending resolution of the issue, the majority is obligated, as we all are, to interpret and apply Supreme Court precedent to the facts of this case, regardless of whether its analysis leads to a result that it does not like.
The 6th Circuit Speaks!!
Making me proud of my home circuit, at least for its timing if not the specifics its opinion, the Sixth Circuit has today beaten the Fourth Circuit to the punch and has released its opinion in US v. Koch, which can be accessed here.
Here's the line up of the judges: Sutton, J., delivered the opinion of the court, in which Boggs, C. J., Guy, Batchelder, Gilman, Gibbons, Rogers, and Cook, JJ., joined. Martin, J. delivered a separate dissenting opinion, in which Daughtrey, Moore, Cole, and Clay, JJ., joined.
Analysis about this major development to come soon.
UPDATE: I am just getting started on the opinion, but it seems that the underlying case involves intricate facts in which the defendant was sentenced for a killing that was never charged nor considered by the jury. Also, I am already proud that (OSU alum) Judge Jeffrey Sutton starts his substantive analysis with a quote from Judge Learned Hand. It looks like this opinion was worth the wait.
Here are just a few of the many choice quotes from the majority opinion:
in each of the post-Mistretta cases, the Court addressed a question not dissimilar to the one presented here: May federal judges find facts under the preponderance standard that increase a sentence beyond the facts found by the jury under the beyond-a-reasonable-doubt standard? Because the Court said “yes” in each case, this line of authority by itself suggests that a lower court should be skeptical about concluding that Blakely’s invalidation of a state-sentencing scheme suddenly dooms the Federal Sentencing Guidelines....
While sentencing statutes and the Guidelines both have the force of law and both bind courts, the Guidelines are agency-promulgated rules enacted by the Sentencing Commission — a non-elected body that finds its home within the Judicial Branch, the very branch of government in which sentencing discretion has traditionally been vested.... This precise distinction, notably, was central to Mistretta’s decision to uphold the Guidelines in the first instance.
Whether this distinction will carry the day in Booker and Fanfan remains to be seen, but it at least undermines the view that Blakely compels us to invalidate the Sentencing Guidelines....
All of which brings us back to our central concern. It may be that the trajectory of Apprendi, Ring and Blakely will end with a nullification of the Guidelines. But, in the face of these relevant precedents, it is not for us to make that prediction or to act upon it. Not only would such a ruling be of some consequence to the Guidelines, but it also would be in tension with whole bodies of law that the lower courts long have been obliged to follow.
Partial Analysis of Majority Opinion: Indeed making me proud to be a Buckeye, Jeff Sutton has penned a wonderfully written defense of the federal sentencing system in the face of Blakely; in my view, this is the best defense of the federal system "on the merits" to date (with apologies, of course, to Judge Easterbrook). We will find out before too long whether Judge Sutton's former boss, Justice Scalia, may find this defense convincing.
Though I will have more commentary on the substance of the majority's opinion later today in a separate post (as well as a separate post about the dissent), I have to comment now about the curious absence of a single mention, let alone any defense, of the Sixth Circuit's prior recommendation that its district courts issue alternative sentences (background here).
Has the curious alternative sentencing recommendation been (officially or unofficially) withdrawn? Upon reflection, did the Sixth Circuit agree with Judge Goodwin that alternative sentencing is inappropriate (details here)? Inquiring minds want to know. And, as my colleague Marc Spindelman suitably added, criminal defendants in the Sixth Circuit deserve to know.
Unpublished opinions and Blakely
As many readers surely know, there is a long-standing, rich and robust debate among judges, litigants and academics about the use, status and appropriateness of unpublished opinions in the federal circuit courts. Here is a fairly recent law.com article about new developments in this debate, and here is a useful (though only partial) list of writings on the topic. I myself have had occasion to write a bit on this topic with Professor Jeffrey O. Cooper. See In Defense of Less Precedential Opinions, 60 Ohio State Law Journal 2025 (1999); see also Passive Virtues and Casual Vices in the Federal Courts of Appeals, 66 Brooklyn Law Review 685 (2001).
Yesterday's noteworthy but unpublished decision from the First Circuit (discussed here), along with the series of other like rulings, have me thinking about the unpublished opinions debate through the lens of Blakely. In this debate, it is often noted that the "unpublished" label is a misnomer and perhaps insignificant because most if not all such opinions are available through the on-line services Lexis and Westlaw. But I am given pause in this context because it seems likely that those most personally interested in Blakely developments — namely, prisoners and their families — likely do not have ready access to these (costly) on-line services.
In addition, through coverage of the Blakely world, I have come to focus on the fact that state courts also have unpublished opinion debates (examples here and here and here) and that state courts will also issue consequential unpublished opinions.
For just the latest example of a consequential unpublished opinion, a California appellate court in People v. Morrison, 2004 WL 1889488 (Cal. App. Aug. 25, 2004), comes to the contestable conclusion that Blakely posed no problems on appeal because "the defendant's high term sentence here is supported by facts found true by the jury," even though a careful reading of the case suggests the jury only found facts which might have supported the requisite finding. In addition, for reasons a bit unclear, the court in Morrison also finds "no violation of Blakely on the imposition of the consecutive sentence."
I will leave it to others to debate (perhaps in the comments) whether it may be useful or problematic that opaque Blakely decisions are officially "Nonpublished/Noncitable."
Popping its head out of the sand
Impressively, and to its credit, the US Sentencing Commission has quickly followed up its public meeting yesterday by posting on the USSC website this Federal Register Notice of Final Priorities, in which the USSC identifies its policy priorities for the upcoming amendment cycle. The full notice covers a lot of interesting ground, and includes this prelude to the USSC's lengthy list of planned priorities:
As part of its statutory authority and responsibility to analyze sentencing issues, including operation of the federal sentencing guidelines, the Commission has identified its policy priorities for the amendment cycle ending May 1, 2005, and possibly continuing into the amendment cycle ending May 1, 2006. While the Commission intends to address these priority issues, it recognizes that other factors, most notably the resolution of US v. Booker and US v. Fanfan, both of which currently are pending before the United States Supreme Court, as well as the enactment of any legislation requiring Commission action, may affect the Commission’s ability to complete work on any or all of the identified policy priorities by the statutory deadline of May 1, 2005.
Astute words from the Third Circuit
As suggested here, I am troubled that the Fourth Circuit in Hammoud issued a consequential and opaque en banc order about Blakely's inapplicability to the federal guidelines and still has not, more than three weeks later, issued an opinion to support and explain that order. Similarly, as detailed here, I am troubled that the Sixth Circuit in Koch issued a nearly identical en banc order about Blakely's inapplicability to the federal guidelines and still has not, nearly two weeks later, issued an opinion to support and explain that order. One basis for my concerns is that this article suggests the orders might reflect the Fourth and Sixth Circuits simply adopting verbatim the position of DOJ.
I have felt a bit guilty expressing my concerns about the Hammoud and Koch orders in snarky ways (example here), and so I am thankful that this post from Orin Kerr at The Volokh Conspiracy highlights a recent Third Circuit opinion which expresses my core concerns responsibly and eloquently. In Bright v. Westmoreland County, No. 03-4320 (3d Cir. Aug. 24, 2004), available here, a panel of the Third Circuit reversed a district court decision which was a near verbatim copy of a proposed opinion submitted by one of the parties. The whole decision in Bright is an interesting read, and I find these astute words from the Third Circuit especially compelling:
Judicial opinions are the core workproduct of judges. They are much more than findings of fact and conclusions of law; they constitute the logical and analytical explanations of why a judge arrived at a specific decision. They are tangible proof to the litigants that the judge actively wrestled with their claims and arguments and made a scholarly decision based on his or her own reason and logic. When a court adopts a party's proposed opinion as its own, the court vitiates the vital purposes served by judicial opinions....
We have made it clear that the linchpin in using findings of fact, even when they are verbatim adoptions of the parties' proposals, is evidence that they are the product of the trial court’s independent judgment. In this case, there is no record evidence which would allow us to conclude that the District Court conducted its own independent review, or that the opinion is the product of its own judgment. In fact, the procedure used by the District Court casts doubt on the possibility of such a conclusion.
Courts and judges exist to provide neutral fora in which persons and entities can have their professional disputes and personal crises resolved. Any degree of impropriety, or even the appearance thereof, undermines our legitimacy and effectiveness.
August 25, 2004
More details about the USSC's briefing plan
Tony Mauro's piece in Legal Times today (available here with registration) confirms the report that the US Sentencing Commission will be filing its own brief asserting the federal guidelines' constitutionality in Booker and Fanfan. According to the article, the solicitor general's office at first balked at the commission's desire to file its own brief, but ultimately recognized that the USSC is an independent judicial branch agency. However, "the commission's request to the solicitor general's office for part its 30-minute argument time was denied." Here are some of the other interesting points from the very interesting article:
The commission's brief is also expected to sidestep the issue of severability -- whether the entire federal sentencing system must fall if the judicial fact-finding aspects are ruled unconstitutional. Commissioners are apparently divided on what position to take.I am a bit disappointed that the USSC's planned brief won't help the Supreme Court work through the tough severability issues, though I guess I can understand the USSC's inability to internally resolve this intricate issue in the short timeframes created by these expedited cases. And I am surprised by the report that the SG, in "a recent reply brief" may be giving ground on its non-severability claims. Does anyone have a copy of this brief to share?
In its own filings, the solicitor general's office has said the guidelines are not severable, though in a recent reply brief, it seemed to offer alternatives that would preserve the guidelines in some instances.
UPDATE: The "reply brief" mentioned above may have been just a reference to the SG's cert. reply brief in Booker and Fanfan, where the SG suggested that the full range of severability questions would be placed before the High Court through those cases. In addition, I think everyone might be able to get access to the Legal Times article here.
The First Circuit chats about ineffective assistance
In the course of figuring out how Blakely might apply to pending and past cases, I have been speculating with others about whether the failure to make or preserve a "Blakely claim" before the time Blakely was decided could be deemed ineffective assistance of counsel. More generally, it seems clear that in addition to all the "on the merits" short-term and long-term Blakely issues, courts will eventually have to sort out a series of short-term and long-term Blakely-related ineffective assistance claims.
In the first decision I have seen starting to speak to these sorts of issues, today in the unpublished case of Campbell v. US, 02-2387 (1st Cir. Aug. 25, 2004), the First Circuit holds in a federal habeas corpus setting that "Campbell is not entitled to a [certificate of appealability] to pursue the claim that counsel was ineffective for failing to anticipate the Court's decision in Blakely." The First Circuit reasons, in a decision that can be downloaded below, that Campbell's "case does not require us to decide whether Blakely applies to the federal sentencing guidelines or whether it applies retroactively to cases on collateral review." The court continues:
Because Campbell stipulated at trial to a drug quantity that corresponded to the base offense level used to calculate his sentence, he cannot show that he was prejudiced by the failure to charge the specific drug quantity in his indictment. Moreover, counsel's failure to anticipate Blakely would not constitute unreasonable performance under Strickland because 'First Circuit jurisprudence on this point ha[d] been well established.' Campbell, 268 F.3d at 7, n.7. Therefore, reasonable jurists could not find that he has made a substantial showing that the Blakely issue would have been clearly stronger than the issues raised by appellate counsel.
At the end of this passage, the court adds this informative footnote:
To the extent that petitioner is seeking to assert a new claim based on Blakely (rather than to provide supplemental support for his ineffective assistance claim), he would be required to present that claim first in the district court. Certification to file a second or successive petition could not be granted unless the Supreme Court had held that Blakely applied retroactively to cases on collateral review. 28 U.S.C. § 2255.
Though this per curiam decision is unpublished and thus formally non-precedential, it obviously speaks to some very important issues in a very important way.
Download campbell_v. US.pdf
One of my favorite readers has thoughtfully asked if I could move this Principle versus Pragmatism post "up to the top because there is too much great discussion going on for it to fall to the bottom or back pages of the blog." Though I am not sure how to do that technologically, I hope this linking and reference serves to highlight the great comments in that post.
In addition, the companion Lawlessness versus Leniency post I think also merits highlighting here because of the great comments the great readers have contributed.
Reports from today's USSC Meeting
I have heard that the US Sentencing Commission meeting that took place this morning (background here) was something of a non-event, lasting less than an hour and making scarce mention of Blakely. Apparently the USSC did indicate that it will be filing a brief with the Supreme Court next week arguing that Blakely is inapplicable to the federal guidelines.
I would like to hear (ideally in the comments) from anyone who was in attendance at the USSC meeting this morning. As long-time readers of this blog know, so far I have been disappointed with the work of the USSC post-Blakely (details here), and perhaps a positive report from this meeting will help me be more optimistic about this critical institution's ability to take a leadership role at this critical time in the history of federal sentencing reform.
The Third Circuit chats about Blakely
In the world of sentencing, you can run, but you cannot hide from Blakely. Well, actually, the en banc courts in the Fourth and Sixth Circuits have been able to run and hide from a written opinion for some time, but I am sure a full account of their orders in Hammoud and Koch are coming real soon.
A full two months after Blakely was handed down, a handful of federal circuit courts — the 1st, 3rd, 10th and DC Circuits, by my count — have still managed to avoid any significant Blakely rulings to date. (The Federal Circuit, to my knowledge, does not have jurisdiction over any criminal cases, though I wonder if anyone out there is working on Blakely-related patent applications.)
The Third Circuit, however, is trying to get on with the business of deciding sentencing cases and has thus had to chat a bit on the record about Blakely. Specifically, in US v. Dickerson, 2004 WL 1879764 (3d Cir. Aug. 23, 2004), a case which is interesting in part for its discussion of guidelines departures, the Third Circuit dropped this noteworthy footnote:
We will address the Government's arguments regarding Dickerson's downward departure notwithstanding the fact that they involves sentencing issues that are completely based on the Federal Sentencing Guidelines, which have recently come under attack in the wake of the Supreme Court's decision in Blakely. We do so because the question here involves the application of a downward departure, rather than an upward departure or a sentencing enhancement. Thus, unless the entire Guidelines regime falls, the decision in Blakely is not clearly implicated here. Further, in response to questioning by the Court at oral argument, the parties conceded that no Blakely-related problems are likely to arise on the facts of this case.
Meanwhile, another decision from the Third Circuit this week, US v. Pepsny, 2004 WL 1873996 (3d Cir. Aug 23, 2004), includes this somewhat cryptic paragraph on Blakely:
In a notice to us subsequent to oral argument, [the defendant] DiFeo, citing Blakely challenges the nine-level increase to her base offense level for having caused losses in excess of $400,000. On appeal, however, DiFeo did not contest the computation of the dollar sums included in the amount of loss calculation (i.e., she did not dispute the propriety of the judge's fact-finding). Rather, she simply argued that these losses should not have been included in the calculation (i.e., she took issue with the application of the Sentencing Guidelines). Thus, while we have rejected DiFeo's attack on the District Court's Guidelines application, we have not said anything regarding the underlying factual determinations. Since we remand for resentencing, DiFeo can attempt to raise the Blakely issue in the District Court.
Finally, in the unpublished US v. Coplin, 2004 WL 1790169 (3d Cir. Aug. 09, 2004), the Third Circuit briefly discussed Blakely in the context of an Anders brief. Based on the defendant's various factual admissions, the court in Coplin explained that "without delving into the many complex questions raised by Blakely, we conclude that under any interpretation of Blakely, Coplin has no nonfrivolous ground for appeal." And at the tail end of a discussion of Apprendi and Almendarez-Torres, the Third Circuit added this entertaining tidbit:
We are absolutely bound by those decisions, for it is the "[Supreme] Court's prerogative alone to overrule one of its precedents." State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). Even if we believe that the foundation of a prior Supreme Court decision is thoroughly undermined, it is up to the Supreme Court to complete the demolition of its own decision.
Noteworthy Circuit Snippets
Though we have not had a major ruling from the federal circuit courts in some time, we continue to get regular snippets from those circuit courts which have already weighed in on Blakely. And though these snippets often appear in so-called unpublished opinions, they are still frequently consequential and interesting.
For example, in cases like US v. Bowden, 2004 U.S. App. LEXIS 17937 (6th Cir. Aug. 24, 2004), and US v. Musleh, 2004 U.S. App. LEXIS 17742 (4th Cir. Aug. 20, 2004); US v. Shipman, 2004 U.S. App. LEXIS 17743 (4th Cir. Aug. 20, 2004), we see the Sixth and Fourth Circuits quickly disposing of Blakely claims in footnotes based on their Koch and Hammoud rulings. Obviously, the fact that these circuits still have not yet explained their en banc Koch and Hammoud orders in written opinions has not slowed their efforts in other sentencing cases.
In recent unpublished decisions from the Ninth Circuit, we see the court continuing its efforts (first noted here) to keep its Ameline decision from disrupting too many sentences. For example, US v. Chetty, 2004 U.S. App. LEXIS 17935 (9th Cir. Aug. 23, 2004), involved an interesting application of plain error. The Chetty court, citing Ameline, explained "it is plain error under the Sixth Amendment to increase punishment beyond the maximum standard range based on facts not admitted by the defendant or found by a jury beyond a reasonable doubt, unless the right to jury trial is waived." Yet Chetty's sentence is not reversed because, though "Chetty's eight-level enhancement for loss found by the district judge by a preponderance of the evidence was plain error," to warrant reversal "the error must have been prejudicial and have affected the fairness of the proceedings." Because Chetty was only disputing part of the loss attributed to him, the sentences he received was still "within the range of the offense level Chetty sought." Thus, through "the district judge's enhancement based on his finding of loss amount was plain error, it was not prejudicial and does not warrant remand for resentencing."
And, in a brief decision in US v. Green, 2004 U.S. App. LEXIS 17911 (9th Cir. Aug. 20, 2004), we get a different variation on important waiver questions. In Green, the Ninth Circuit relies on an appeal waiver to avoid dealing with Blakely: "Defendant waived the right to appeal her sentence, and we therefore dismiss her appeal. Because defendant's waiver also precludes us from considering her argument based on Blakely, we deny her motion for supplemental briefing."
From the Eighth Circuit we get US v. Mohr, 2004 U.S. App. LEXIS 17861 (8th Cir. Aug. 23, 2004), where the defendant was sentenced as a career offender and contested the characterization of one of his predicate prior felonies, commercial burglary, as a crime of violence. In another stretch of the "prior conviction" exception, Judge Murphy in a footnote comes to the debatable conclusion that "Mohr's case is unaffected by Blakely because ... the only enhancement to Mohr's sentence was because of his prior convictions." Interestingly, Judges Heaney and Bright each have separate concurrences in Mohr to discuss the characterization of the defendant's prior conviction, but neither mentions the possible Blakely issue.