August 24, 2004
A bit of late day Blakely news
Though the media coverage of Blakely has slowed to a trickle, we still get a story or two of interest from the newspapers. This article, for example, discusses Blakely's impact on Oregon state sentencing practices and notes that Governor Ted Kulongoski has appointed Phil Lemmon, executive director of the state's Criminal Justice Commission, "and others to study Blakely's impact on Oregon's criminal justice system." Interestingly, Oregon officials in this article suggest the Blakely impact will not be too consequential:
Lemmon figures the ruling could affect 200 to 300 cases currently in the system. That probably includes five to 10 in Washington County, said District Attorney Robert W. Hermann: "In the grand scheme of things, I'd estimate it only affects 10 percent of all cases."Yet, as previously noted here, at least one member of Oregon defense bar has said that the implications of Blakely for Oregon are "absolutely enormous."
Meanwhile, on the other side of the country, this article from Alabama discusses the case of a local businessman who now "has been indicted for the fourth time since his November arrest on drug-trafficking charges." According to the federal prosecutor involved, the latest re-indictment was the direct result of Blakely:
The added detail is because of new U.S. Department of Justice policy following the U.S. Supreme Court's opinion in Blakely v. Washington, according to A. Clark Morris, U.S. assistant attorney for the Middle District of Alabama. "The only reason that the case was superseded was the Blakely case," said Morris.... "So all factors that would increase his sentence we've added," Morris said.With sincere apologies to the Peaches & Herb classic, this story has me humming "Re-indicted and it feels so good...."
More Minnesota remands
As discussed here and here, the Minnesota Sentencing Guidelines Commission's "short-term report" about Blakely sought to downplay the overall impact of Blakely on Minnesota state sentencing. And though it may be true that neither Minnesota nor any other state will experience the dramatic disruptions occurring in the federal system, the now regular pattern of Blakely remands from the state intermediate courts in Minnesota reveals that even "small" Blakely disruptions are still disruptive to the regularized administration of justice.
Thus, today we get standard remands in three Minnesota state cases. See State v. Lenear, 2004 WL 1878770 (Minn. App. Aug. 24, 2004); State v. Juenke, 2004 WL 1878797 (Minn. App. Aug. 24, 2004); State v. Krueger, 2004 WL 1878998 (Minn. App., Aug. 24, 2004). There is nothing uniquely consequential about any of these remands, though I could not help but notice that all three cases involved sex offenses and Lenear involved a "quadruple upward durational departure"!
If you're in DC looking for a Blakely fix...
For those of you who cannot get enough Blakely — and, honestly, who can? — remember that there are two gatherings of note this week in DC which will be addressing, directly or indirectly, the future of the federal sentencing system.
First, as noted before here, the US Sentencing Commission has scheduled a public meeting for Wednesday, August 25, 2004 at 10a.m. Though Blakely is not on the official agenda (available here), I have to think the USSC's discussion at this meeting must cover some Blakely ground.
Second, the Federalist Society together with the Cato Institute will be hosting on Thursday, August 26, 2004 at 12noon a program entitled "Blakely's Wake: Should the Federal Sentencing Guidelines Be Saved or Scrapped?". Links here and here provide more details about the event and the headliners slated to be involved.
A bit of Blakely background
As detailed here, the first special issue of the Federal Sentencing Reporter covering Blakely has gone to press. And I am now pleased to report that the issue's entire contents will be available electronically soon via the on-line service Caliber in advance of the print. I will provide a link here as soon as it is up.
In the meantime, FSR's publisher, University of California Press, has graciously agreed to allow me to post the full text in pdf form of my Editor's Observations for this issue. My piece is entitled "Examining the Blakely Earthquake and its Aftershocks," and it is designed to provide a bit more jurisprudential background on how Blakely came to pass.
Dollars and Sentencing
Many readers likely know that the paths of federal and state sentencing reforms have diverged in part because of economics. Even though the federal corrections system is the biggest in the country, state expenditures on corrections consume a much bigger portion of states' overall budgets. Thus, as highlighted by this terrific report entitled "Changing Fortunes or Changing Attitudes?: Sentencing and Corrections Reforms in 2003" produced earlier this year by the folks at the Vera Institute's State Sentencing and Corrections Program, states struggling with the "third straight year of severe economic crisis" took a series of "steps to lessen sentences and otherwise modify sentencing and corrections policy during the 2003 legislative sessions."
This recent article discussing a planned review of state sentencing laws and practices in Oregon highlights that, when it comes to sentencing reform, the almighty dollar might still be more powerful than the almighty Blakely. Though Oregon state sentencing laws apparently have big Blakely problems (details here), the article reveals that the public debate over Oregon sentencing reforms is about sentencing costs not sentencing procedures. Here's hoping that, on the playing field of sentencing, Oregon can get its ducks in a row.
Interesting sentencing case, though Blakely shaky
As briefly mentioned before, US v. Paulus, 2004 U.S. Dist. LEXIS 16427 (E.D. Wis., Aug. 6, 2004), merits its own post in part because it is the first decision I have seen in which a court confronts Blakely in the context of deciding to depart upward from the guidelines. The opinion is also worthy of a read simply because of its compelling facts (the defendant was a county district attorney who accepted 22 bribes over a two-year period), and because of the thoughtful and at times dramatic account by US District Judge William Griesbach of his reasons for departing upward. (A brief quote: "This offense and the conduct relating to it strike at the heart of the system of justice we having in this country and of which we are rightly proud.")
In Paulus, Judge Griesbach skates around apparent Blakely problems by first asserting that the defendant, though his plea agreement, "has admitted the essential facts upon which the court suggested that a departure may be warranted." This is accurate to a degree since the upward departure here is based in part on the number of bribes and amount of money received by the defendant. And these facts appear in Paulus' plea agreement.
However, the Paulus decision is quirky and perhaps Blakely shaky because the departure also seems to depend on a finding that the defendant's crime may have caused "a loss of public confidence in government." While conceding that Paulus did not admit to "the impact his offense may have had on the public," Judge Griesbach then asserts that "this is not the kind of sentencing factor to which Blakely is addressed." Unfortunately, Judge Griesbach gives no further explanation of this cryptic and important conclusion.
In addition, apparently to provide a back-up rationale for his decision, Judge Griesbach then asserts that if there was a Blakely problem, he would follow Judge Cassell's opinion in Croxford and just treat the guidelines "as guidance" (which, the judge indicates, he has already done "in other cases where the [Blakely] issue has been raised"). But then, after suggesting he might just treat the guidelines as advisory, Judge Griesbach works through a traditional guideline departure analysis with great analytic rigor and operates as if he believes he is legally bound by the guidelines in this case.
August 23, 2004
Reasons for broader sentencing reconsideration
We now know that the Supreme Court won't be rehearing Blakely itself, but will be soon considering what Blakely means for the federal sentencing guidelines. But more than a few commentators have sensibly suggested that the whole Blakely mishegaas presents a critical and critically important opportunity to rethink not only major components of sentencing guidelines systems, but also major aspects of America's sentencing and punishment practices. (Of course, as detailed here, Justice Kennedy and the ABA were calling for such wholesale rethinking even before Blakely.)
Whatever else you might think of the Blakely decision, it has certain helped invigorate a needed national conversation about sentencing laws and practices. And a study I recently received from Margaret Love entitled, "The Diminishing Returns of Increased Incarceration: A Blueprint to Improve Public Safety and Reduce Costs," provides additional support for the notion that a wholesale rethinking of our punishment and sentencing practices is in order. The study collects an array of important data about the increased use of imprisonment over the last 20 years and argues that we have "reached a tipping point of 'diminishing returns' on our investment in prisons." The report, which can be downloaded below, also highlights various state prison reform efforts which have sought to reduce criminal justice costs while enhancing public safety.
Tracking Blakely decisions
With most of the federal circuit courts still not fully articulating their views on Blakely (background here), almost all of the most informative and thoughtful federal Blakely decisions have come from the federal district courts (details here). And in my efforts to track the work of federal district courts, I have gained a real education on the vagaries of the on-line legal world.
For example, the difference in the coverage and timing of district court opinions appearing on Lexis and Westlaw has sometimes been startling — e.g., a search this afternoon of "Blakely & Sentenc!" after June 24, 2004 produces 76 district court "hits" on Lexis and only 70 "hits" on Westlaw.
In addition, a good number of consequential district court opinions seem to take many days before appearing on either of these services — e.g., Jason Hernandez here reports on the noteworthy case of US v. Paulus, No. 04-CR-083, 2004 U.S. Dist. LEXIS 16427 (E.D. Wis., Aug. 6, 2004), which escaped my notice perhaps in part because it took at least a week to appear on-line. (I am very thankful Jason found and discussed Paulus; it is the first case I have seen discussing Blakely in the context of an upward departure from the guidelines, and it may merit its own separate post later tonight.)
I feel incredibly lucky and thankful that many readers have sent me directly important Blakely decisions and orders, and I want to encourage these kind acts so that I can stay abreast of Blakely developments. For it seems that even in our on-line world, being connected still means a lot more than just having internet access.
Sorry, Washington, no rehearing in Blakely
As Lyle Denniston reports here over at the SCOTUS Blog, the Supreme Court today denied Washington's petition to rehear its ruling in Blakely. Of course, as Lyle notes, though the Court has now officially refused to "rehear" Blakely, it will certainly have occasion to "reconsider" the scope and meaning of the Blakely decision through US v. Booker and US v. Fanfan on the first day of the new term, October 4.
The denial of this rehearing petition, though not unexpected, is still in my view important. Though I know better than to read too much into unexplained refusals to hear particular cases, the denial of Washington's petition suggests to me that there are not five votes on the Supreme Court in support of radically rethinking the entire Apprendi/Blakely line of cases — even though the rehearing petition (available here) made a pretty compelling case for such a radical rethinking.
So, with Washington officially shut out of the SCOTUS Blakely action for now, I wonder if Washington or other states plan to file amicus briefs in Booker and Fanfan. Obviously, the fates of state sentencing systems are not directly at issue in these federal sentencing cases. But Booker and Fanfan will have to — or at least should— provide some fuller account of what the heck Blakely really means, and thus I suspect at least a few states might want to share their views as amici. Of course, if they want to speak on these issue, states (and others) need to move fast. Briefs in support of petitioners (DOJ) and briefs not in support of either party are due September 1. Briefs in support of respondents (Booker and Fanfan) are due September 21.
Complicated statutes and statutory complications
I have highlighted before (here and here and here) that, after one comes to the (simple?) conclusion that Blakely renders portions of the federal guidelines unconstitutional, the so-called severability issue is extraordinarily important and extraordinarily challenging. This morning I can share here two articles forthcoming in the next issue of the Federal Sentencing Reporter that add additional nuances and complications to these constitutional and statutory issues. (N.B.: The first issue of FSR covering Blakely, discussed here, went to press earlier this month. The articles below will appear in print in the October 2004 issue of FSR.)
In "The Hedgehog, The Fox, And The Guidelines: Blakely's Possible Implications For The 'Safety Valve,'" federal public defenders Jane L. McClellan and Jon M. Sands explore a series of stunningly intricate and interesting severability issues raised by the "safety valve" provision, which provides both a statutory and guideline reduction for a sizeable number of low-level federal drug offenders. As the authors explain, the "purpose of this piece is to walk down the hall of mirrors or into an Escher print that is the safety valve for Blakely purposes."
In "Hoist with their Own Petard?," FSR editor Professor Steve Chanenson explains why Congress's meddling with the federal guidelines through the PROTECT Act (and its infamous Feeney Amendment) may, after Blakely, undermine Congress's apparent interest in preserving the existing guidelines. In his words, "Congress's reckless disregard for the United States Sentencing Commission and open contempt for the judiciary may indeed prove to be one of the most counterproductive acts in recent sentencing history." (Note this is a revised version of the draft posted here a few weeks ago.)
August 22, 2004
Blakely week in review
Though last week proved to be a relatively quiet Blakely week, some of my pre-week Blakely questions were at least partially answered. The true hallmark of the week was the federal circuit courts' willingness to leave Blakely questions unanswered or only partially answered.
We are still awaiting opinions from the Fourth Circuit in Hammoud and from the Sixth Circuit in Koch. With the time these courts are taking to explain their opaque alternative sentencing orders, I suspect some interesting dissents may accompany these courts' opinions. (Also, since the orders in Hammoud and Koch were nearly word-for-word identical, I cannot help but wonder if there might be some inter-circuit sharing of ideas and text. Does anyone know if judges on different courts are allowed to do "group projects"?)
Adding to the uncertainty this week was the Eighth Circuit's decision to take Pirani en banc (details here), thereby leaving the Eighth Circuit with no binding Blakely precedents and leaving everyone waiting for en banc arguments which are (mysteriously) to be "held at a time and place to be announced."
The news from the states this week was partial but always interesting, as detailed in posts about Blakely developments in California, Oregon, Tennessee and Indiana. And, as detailed here and here, one-time guest blogger Ron Wright earned even more thanks from me for a number of insightful reflections based on his time at the NASC Conference this week.
Finally, though I think Judge Joseph Goodwin's opinion in US v. Johnson (details here) is still the most engaging recent Blakely decision, I was wowed by Judge James Gwin's opinion in US v. Onunwor (details here) and also by my own DOJ-inspired visual rendering of Blakely (and the best set of comments on the blog) available here.
Collateral Sanctions and Blakely
One reason Blakely is such a big deal is because its core principle could extend so very far. Though I suspect we will see continuous efforts to reign in Blakely, the decision's suggestion that "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment" could have a profound impact on so many different facets of the criminal justice system.
For example, I have of late been thinking about whether Blakely might in some way impact so-called collateral sanctions — i.e., legal restrictions on voting, licensing, employment and government benefits which can flow from a criminal conviction in many jurisdictions. Part of what is prompting this thinking is my participation in a conference next month that will examine in detail the law and policy of collateral sanctions.
Margaret Colgate Love is one of the organizers of the event, and she sent me this formal announcement:
On September 24 the University of Toledo Law Review will host a symposium on "The Legal Barriers to Reentry in Ohio: Collateral Sanctions in Theory and Practice." The symposium will showcase the new ABA Standards on Collateral Sanctions and Discretionary Disqualification of Convicted Persons, whose black letter and commentary has recently been published (available here). The Standards propose a novel analytical approach to the collateral legal consequences of conviction, that they be considered an integral part of the sentencing process. Speakers will include practitioners, policymakers and scholars with broad expertise on collateral sanctions, both in Ohio and on the national level.
More details about this event can be accessed here, and below you can download a letter of invitation to the symposium (which is free to attend) and the program (which lists speakers and their topics).