September 4, 2004
Texas-sized Blakely analysis
In a wonderful and thorough analysis of issues that now confront the Supreme Court in Booker and Fanfan, US District Judge Kathleen Cardone of the Western District of Texas does not let the Fifth Circuit's ruling in US v. Peneiro, 377 F.3d 464 (5th Cir. 2004), keep her from opining on the true meaning of Blakely for federal sentencing law. In US v. Chapparro, 2004 U.S. Dist. LEXIS 17531 (W.D. Tex. Sept. 1, 2004), Judge Cardone recognizes that "Pineiro is undisputedly the law of this Circuit," but then offers a stunningly detailed exegesis and analysis of Blakely issues "in the event the Court of Appeals elects to reconsider its holding in Pineiro."
Though a very long opinion, Chapparro is worth a thorough and full read because it first thoughtfully discusses "the structure and application of the Guidelines [and] relevant Supreme Court precedent leading up to the Blakely decision," and then turns to "a structural comparison between the federal guidelines and the guidelines before the Court in Blakely [in order to] address the significance, if any, of the fact that the federal guidelines are promulgated by an independent agency whereas the guidelines before the Court in Blakely are promulgated by a legislature."
Because Judge Cardone's analysis is so rich, I cannot do it justice with a brief summary. But these key passages I think capture the most important highlights:
Given the past characterization of the Guidelines as binding on judges rather than suggestive, it is difficult to ascertain a principled reason by which an agency delegated lawmaking authority restrained only by a Congressional right of refusal would be permitted to effect the substantive rights of defendants without offending the Constitution while Congressional action of the exact same nature would offend the Constitution. Such an interpretation reduces the right to jury trial to a "mere procedural formality," Blakely, 124 S. Ct. at 2538, in which the essential question becomes not the right itself but rather the source of the procedure. The right to jury trial could be vitiated by simply transferring lawmaking authority to an agency....
[I]t would therefore take a legal fiction of the highest order embracing the proposition that the existing Guidelines, which bind a sentencing court to procedures on peril of reversal, are no more than a court rule guiding a judge through sentencing and therefore constitute a form of agreement with the Commission by which discretion is ceded in exchange for predictability. Only such a fabrication would explain why an offender has rights under statutory guidelines and lacks the same rights under a regulatory guideline.
More on Blakely's retroactivity
In Morris v. US, 2004 WL 1944014 (C.D. Ill. Sep 01, 2004), District Judge Jeanne Scott walks through the various steps of Blakely retroactivity analysis as carefully and as thoroughly as any court to date. Unlike the garbled ruling in Garcia v. US, 2004 U.S. Dist. LEXIS 14984 (NDNY Aug. 4, 2004), Judge Scott's analysis in Morris rightly reflects that Teague's retroactivity analysis only applies to "new" rules, and she comes to the conclusion that Blakely is a "new" rule despite the fact that it is arguably only an application of Apprendi. (See some background on these issue in the post and comments here.)
However, at the last step of her Teague retroactivity analysis, Judge Scott falls prey to a mistake common to many considering retroactivity by suggesting that the Supreme Court's decision in Schriro conclusively forecloses the issue: "Schriro teaches, however, that such a right cannot be applied retroactively because it is not of the type fundamental to the concept of ordered liberty." But, as I have stressed repeatedly before here and here, in Schriro there was no question about the application of the proof beyond a reasonable doubt standard (see footnote 1 of the Court's opinion in Schriro); Schriro only concerned retroactive application of the jury right. Consequently, a number of commentators have astutely noted that Schriro does not conclusively foreclose retroactive application of Blakely.
Tennessee's functionality meets Blakely's formalism
In this post I focused on Ohio sentencing law to highlight that Blakely's formal rule is so consequential (and confusing) because functionality, not formalism, is the hallmark of many facets of sentencing reform. Another interesting example of these dynamics emerged from Tennessee this past week in State v. Bellamy, 2004 WL 1936384 (Tenn. Crim. App. Aug. 31, 2004), where the court was addressing the state's functional presumption for "alterntive sentencing" in its sentencing laws.
The majority's opinion in Bellamy actually avoided discussing what Blakely might mean for the state presumption for an alterntive sentence, though it did helpfully explain this part of Tennessee sentencing law:
In regards to alternative sentencing, Tennessee Code Annotated section 40-35-102(5) provides as follows: "In recognition that state prison capacities and the funds to build and maintain them are limited, convicted felons committing the most severe offenses, possessing criminal histories evincing a clear disregard for the laws and morals of society, and evincing failure of past efforts at rehabilitation shall be given first priority regarding sentencing involving incarceration." A defendant who does not fall within this class of offenders "and who is an especially mitigated offender or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable candidate for alternative sentencing in the absence of evidence to the contrary." Id. § 40-35-102(6).
Though the majority did not speak at all to how Blakely might impact the application of this provision by sentencing judges, Judge James Curtwood Witt concurring did so in this thoughtful way:
In my view, we must recognize the possibility that Blakely v. Washington, hampers a trial judge's authority to make the fact findings necessary to overcome the statutory presumption of favorable candidacy for alternative sentencing....
The defendant in the present case enjoyed the presumption of Code section 40-35-102(6), and it behooved the trial court, in imposing a sentence of confinement, to offset the presumption by finding any, or any combination, of the factual premises listed in section 40-35-103(1), such as, the need to protect society from an offender with a long history of criminal conduct or the ineffectiveness of prior non-confinement measures. See id. § 40-35- 103(1)(A)(C) (2003). That factual determination is in addition to the facts explicitly or implicitly established by the defendant's guilty plea....
[T]he High Court in Blakely did not speak in narrow terms that targeted merely the length of an accused's sentence; rather, it spoke in broad terms of the state's power to punish: "When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts 'which the law makes essential to the punishment,'... and the judge exceeds his proper authority." Id. (quoting 1 J. Bishop, Criminal Procedure, § 87, p. 55 (2d ed. 1872) (emphasis added). Thus, Blakely seems to have impact on Tennessee's scheme of presuming favorable candidacy for alternative sentencing because whether to confine or not confine is, in a general sense, an issue of punishment....
That said, we know that the Sixth Amendment's prohibition of increasing punishment beyond the "statutory maximum" based upon an additional judge-made finding does not apply to "the fact of a prior conviction." In the present case, the defendant's record of prior convictions is substantial. Although the pertinent factual premise for overcoming the presumption of favorable candidacy for alternative sentencing addresses prior "history of criminal conduct," a standard that does not necessarily limit consideration to conduct that resulted in convictions, the defendant does have an extensive record of prior convictions. For that reason, I believe that the trial judge could have properly based his confinement order on the record of prior convictions, and even if Blakely does apply to Code section 40-35-102(6)'s presumption, the court's use of sentencing factors other than prior criminal convictions would be harmless beyond a reasonable doubt.
Another possible Blakely front and great dicta
Though not formally a Blakely case, the South Carolina Supreme Court in a decision last week was apparently influenced by Blakely when considering an intricate issue of appellate procedure. In State v. Brown, 2004 WL 1948696 (S.C. Aug. 30, 2004), the Court was considering whether and when an appellate court, after reversing a conviction due to lack of evidence on one element of the offense, should be able to remand the case for entry of judgment and sentencing on a lesser included offense. The Brown court provides an extended and quite interesting discussion of the appropriateness of so-called "sentencing remands," and it notes along the way that "[n]umerous state and federal courts have approved of the practice of a sentencing remand in appropriate circumstances."
The court in Brown ultimately concludes that when a conviction is reversed due to insufficient evidence, a court should consider remanding a case for sentencing on a lesser included offense only in very limited circumstances, and along the way the court cites Apprendi, Ring, and Blakely in support of its ruling. In so doing, the court drops this choice footnote:
We recognize the vigorous debate, as expressed in Apprendi, Ring, and Blakely, between those justices who believe our people's traditional belief in right of trial by jury is in perilous decline due to the accelerating propensity of both state and federal legislatures to adopt 'sentencing factors' determined by judges that increase the punishment beyond what is authorized by the jury's verdict, Ring, 536 U.S. at 611- 612 (Scalia, J., concurring), and those who believe Apprendi and its progeny portend disastrous practical consequences for state and federal sentencing guideline schemes developed during the past two decades through the collective experience and wisdom of the judicial, legislative, and executive branches of government. Blakely, 124 S.Ct. at 2543-2561 (O'Connor, Kennedy, and Breyer, JJ., dissenting separately). The present view of the majority of the Supreme Court regarding the crucial role of the jury in determining facts relating to elements of the crime and facts which may result in increased punishment, other than the fact of a prior conviction, undoubtedly lends support to our resolution of this case.
September 3, 2004
Judge Posner on blogging
This article from the ABA Journal e-report discusses Seventh Circuit Judge Richard A. Posner's view of blogs and blogging after he spent a week as a guest blogger on lessig blog for Stanford Professor (and former Posner clerk) Lawrence Lessig. Just like Judge Posner's many posts, the article is an interesting, informative and amusing read.
Though I encourage reading the whole ABA article, this set of quotes seemed especially choice on a Friday afternoon (and coming from a person who made his name on law-and-economics insights):
"What worries me about the phenomenon is the time being consumed," says Posner. "There’s a lot of interesting material in the blogs and comments, but is it the best use of time?"
In the interest of full disclosure, I should note that I have sent an e-mail to Judge Posner — the author, recall, of the majority opinion in Booker — offering him the opportunity to guest blog in this space. I have not yet heard back from the Judge (though I noticed here that Judge Posner is already committed to guest blogging on Professor Brian Leiter's blog later this year).
Happy holiday weekend.
First Circuit mutters!!
In this crazy post-Blakely world, one amazing discovery I have made — or perhaps I should say one supposition I have had confirmed — is that many important and consequential decisions are announced in unpublished opinions. Yet another example comes again from the First Circuit, which yesterday in US v. Morgan, No. 03-1768 (1st Cir. Sept. 2, 2004), addressed key issues of waiver and plain error review of Blakely claims.
First, in contrast to a recent California decision in People v. Ochoa (noted here), the First Circuit in Morgan first suggests (though does not quite hold) that the defendant waived his Blakely claims, even though Blakely was decided after his case was appealed and argued and even though he disputed at sentencing the amount of drugs involved in his offense. Then the court ducks deciding this issue by saying that even if the defendant merely "forfeited" and did not waive his Blakely claim by not raising it sooner (i.e., before Blakely was decided), the defendant still would not prevail in his appeal under plain error analysis:
Plain error review is extremely deferential.... Under existing (post-Apprendi, pre-Blakely) First Circuit precedent, the judge is empowered in a conspiracy case to determine the exact amount of drugs that a defendant reasonably foresaw, so long as his sentence is no greater than that which could be imposed based on the total quantity of drugs that the jury had found for the conspiracy as a whole. See Derman, 298 F.3d 34, 42-43. Because the trial judge acted in accordance with circuit precedent, we cannot say plain error occurred, and we need not proceed further.
As an unpublished decision, I do not think Morgan is binding precedent that Blakely does not apply in the First Circuit. But the decision certainly is in tension with all the First Circuit district court decisions (such as Fanfan and Meuffleman) finding that Blakely renders at least portions the federal guidelines unconstitutional.
In addition, the facts of the Morgan case provide a stunning example of the potential importance of Blakely and especially the requirement that sentence-enhancing facts are found beyond a reasonable doubt. The defendant in Morgan throughout the case contested the amount of drugs that the government was trying to attribute to him, and the First Circuit affirmed the sentence by relying heavily on the fact that, under pre-Blakely law, such drug amounts only have to be found by a preponderance. Here is the first paragraph for the Morgan court's substantive analysis:
As oft-written, "[w]e review the sentencing court's factual findings, which must be supported by a preponderance of the evidence, for clear error." United States v. Lopez, 299 F.3d 84, 87 (1st Cir. 2002), citing United States v. Damon, 127 F.3d 139, 141 (1st Cir. 1997). That "preponderance," United States v. Marks, 365 F.3d 101, 105 (1st Cir. 2004), simply requires the government to present enough information, free from the strictures of the rules of evidence which do not apply to sentencing hearings, "provided that the information has sufficient indicia of reliability to support its probable accuracy," Lopez, 299 F.3d at 89; Fed. R. Evid. 1101(d)(3), to make it more likely than not that the fact to be proved is true.
Download us_v. Morgan.pdf
Complete SG Brief in Booker and Fanfan
A number of my savvy readers noticed that the Government's brief in Booker and Fanfan posted earlier this week lacked the table of contents and all those other introductory pages. Thanks to another FOB ("friend of blog"), I now have a complete version of this important document. It can be downloaded here:
Another interesting Ohio case
Yesterday in State v. Richards, 2004 Ohio 4633, 2004 Ohio App. LEXIS 4204 (Ohio App. Sept. 2, 2004), Judge James Sweeney in a dissent continued to spotlight Blakely issues in the application of Ohio's state sentencing laws. Recall that, as detailed here, Judge Sweeney and his colleague Judge Michael Corrigan had an interesting debate over the applicability and reach of Blakely in Ohio last week in State v. Taylor, 2004 WL 1900333, 2004-Ohio-4468 (Ohio App. Aug 26, 2004).
In Richards Judge Sweeney was simply calling for the defendant's sentence to be remanded for consideration of Blakely issues, but the case is interesting and noteworthy because it involved the imposition of a three-year sentence when the offense of conviction provided a statutory range of between one and five years. But, as Judge Sweeney correctly notes, under Ohio's statutory sentencing laws "the court could only deviate from the minimum sentence by making judicial findings beyond those either determined by a jury or stipulated to by the defendant." Specifically, in this case, the trial court imposed a sentence of three years rather than one year based on a finding that the "the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public." Ohio Revised Code § 2929.14(B).
I have discussed at length here how Ohio's laws governing the imposition of maximum sentences raise deep jurisprudential issues about the meaning and reach of Blakely. Judge Sweeney's dissenting opinion in Richards expressly highlights — and the majority's opinion in Richards implicitly rejects — that the same tough Blakely issues arise whenever an Ohio judge imposes a sentence above the statutory minimum.
Though I do not think these issues have yet come before the Ohio Supreme Court, it is only a matter of time before Buckeye Justices will need to start grappling with Blakely's meaning for Buckeye justice.
More thoughtful California analysis
With great thanks to Jonathan Soglin at Criminal Appeal who first reported the news here, yesterday there was another important Blakely decision from a California intermediate appellate court in People v. Ochoa, no. D042215 (Cal. App. (4th Dist.), Sept. 2, 2004). In Ochoa, the court spoke thoughtful to the question of waiver and also concerning the applicability of Blakely to fact-finding by judges to support the imposition of imposing consecutive sentences.
On the waiver issue, the Ochoa court sensibly concluded that "because Blakely was decided after Ochoa's sentencing hearing, Ochoa cannot be said to have knowingly and intelligently waived any right to a jury trial relating to the imposition of a consecutive sentence by failing to raise such an objection at the hearing." On the judge's imposition of consecutive sentence, the Ochoa court emphasized the discretionary nature of the decision to impose consecutive sentence under California law:
[A]lthough there certainly is broad language in Blakely that could be interpreted to support the existence of a jury trial right in the face of any factual finding that affects the length of the sentence imposed, neither Blakely nor the cases that preceded it establish the right to a jury trial in connection with the imposition of consecutive sentences and in fact those cases suggest that a contrary conclusion applies in that context.
The United States Supreme Court has repeatedly recognized that a court may constitutionally exercise discretion in imposing sentence, and in doing so may consider various factors relating to the offense and the offender, provided that the sentence is "within the range provided by statute" for the charged offense....
This analysis applies here. Under California law, when a person is convicted of two or more crimes, the trial court has the discretion to impose the sentence on the subordinate counts consecutively or concurrently.... In light of the jury's finding (or the defendant's admission) of guilt on the charged offenses, the imposition of consecutive sentences does not exceed the statutory maximum penalty for those offenses and thus does not contravene the holding in Blakely.
September 2, 2004
The Eleventh Circuit Speaks!!
As if we did not have enough to read, the Eleventh Circuit just handed down a decision in US v. Reese, No. 03-13117 (11th Cir. Sept. 2, 2004), in which the court joins what is now a considerable majority of federal circuits in declining to apply Blakely to the US Sentencing Guidelines. Here's the key language:
In light of Edwards and our own precedent in Sanchez, the additional cases and reasoning discussed by the Fifth Circuit in Pineiro and the Sixth Circuit in Koch, as well as the Supreme Court's express avoidance of this issue with respect to the Guidelines in the Blakely opinion itself, we decline to conclude that Blakely compels an alteration of the established view of the Guidelines as a tool for channeling the sentencing court's discretion within a crime's minimum and maximum sentence provided in the United States Code, with that maximum being the only constitutionally relevant maximum sentence. Therefore, the district court did not err in imposing the four-level enhancement pursuant to USSG § 2K2.1(b)(5). We hold that district courts should continue to sentence pursuant to the Guidelines until such time as the Supreme Court rules on this issue.
The decision includes this interesting "homage" to the idea of alternative sentencing, although now repackaged with the interesting label "protective steps":
We acknowledge that two circuits have held that Blakely does apply to the Guidelines, and that it is very difficult to predict whether the Supreme Court will apply Blakely to the Guidelines, and, if it does, whether it will hold that the Guidelines fall in their entirety or only in part. In light of this instability, we recognize that district courts might deem it wise and appropriate to take protective steps in case the Guidelines are later found unconstitutional in whole or in part. However, we are reluctant to provide specific advice with respect to what protective steps, if any, might be appropriate to reduce confusion and protect against duplicative judicial efforts should the Supreme Court so rule. We realize that such appropriate and feasible steps might vary with each individual case.
I have a lot more to say about all the Booker and Fanfan briefs filed yesterday (available here and here), but a thoughtful reader suggested an interesting idea/question to keep in mind when reading (or re-reading) the SG's brief. The idea/question is: "Who is the government attempting to peel off from the Blakely majority?"
As I have been repeatedly saying to the students in my sentencing seminar, there is an interesting history and story connected to each of the nine Justices in the whole Apprendi/Blakely line of cases. Because of their forceful opinions in a number of cases, it seems unlikely either Justice Stevens or Thomas is likely to shrink from applying Blakely to the federal guidelines.
Some might say the same about Justice Scalia, though the thoughtful reader notes that given Justice Scalia's "break from the pack in Harris and his much-rumored initial dissent in Ring," Justice Scalia might "be looking for ways to cabin the pro-defendant effects of his brightline position." Since Justice Scalia was the swing (silent) vote in Harris, this speculation is sensible. However, I really think Justice Scalia would have written Blakely much differently if he wanted to save the federal system, and I also think he is much too smart to not have realized the seismic impact his broad Blakely language would have on the federal system.
Justices Ginsburg and Souter have said the least "on the record" in this line of cases, though Justice Ginsberg wrote the important Ring decision (which extended Apprendi to capital sentencing and reversed a recent precedent to do so) and Justice Souter wrote the important Jones decision (which first articulated the key language that became the Apprendi rule). In addition, both Justices signed on to Justice Thomas' forceful dissent in Harris.
Finally, I also think it is worthwhile to speculate about whether any of the Blakely dissenters might now "switch teams." My instinct is that Chief Justice Rehnquist and Justice O'Connor would be unlikely to ever play a role in the federal aftershocks of Blakely's "Number 10 earthquake." But Justices Kennedy and Breyer have such a dynamic history in expressing their views about both the doctrines and policies of federal sentencing (consider cases like Koon and the public speeches they've both made about problems with federal sentencing policies and practices). And Justices Kennedy and Breyer have both in cases like Ring and Harris said interesting things about the logic and reach of Apprendi.
Though Justices Kennedy and Breyer obviously did not want to extended Apprendi to guideline sentencing, now that the Blakely earthquake has happened, I think either or both might be more inclined to actively help with post-Blakely clean-up efforts rather than continue complaining about the ground shaking.
The SG and Severability
As with the arguments that Blakely does not apply to the Federal Sentencing Guidelines, there is so much to say (and likely to be so many coming posts) about the argument that the "Guidelines as a whole are inapplicable in cases in which the Constitution would override the Guidelines' requirement that the district court find a sentence-enhancing fact." I have not even had a chance to read closely the specifics of the SG's argument on this issue, but two quick observations already seem essential:
1. On page 67 of the SG's brief, the government seems not only to concede, but also to contend, that the Sentencing Reform Act of 1984 (SRA) is severable. Specifically, the government explains in detail that the provisions of 18 U.S.C. 3553(a) would still govern federal sentencing even if Blakely is held applicable to the federal guidelines. Thus, the real severability issue in Booker and Fanfan is apparently not whether some aspects of the federal sentencing system is severability, but rather only which aspects are severable. (Arguably, the emphasis in the Senators brief on the SRA as a "comprehensive plan" might be in tension with the SG's "pro-severability" claims, but I will leave it to others for now to debate this fine point.)
2. From a very quick read, it seems that the SG is completely ducking the question of whether, if Blakely applies to the federal guidelines, the guidelines can and should still apply in cases that do not raise any "Blakely factors." As noted here and here, at least two federal judges are on record (Judge Gertner in Meuffleman and Judge Presnell in King) as saying that, if the guidelines are wholly inapplicable in some federal cases, then they are wholly inapplicable in all federal cases. I was hoping to see the SG's brief address this critically important issue head on.
Applying Blakely to the federal sentencing guidelines
There is so much to say about the arguments made by the SG in its merits brief (and by the USSC and the former federal judges in their amicus briefs) that "Blakely does not apply to the Federal Sentencing Guidelines." I suspect many posts (and I hope a lot of comments from readers) will over time allow me and others to think through all the aspects and implications of these arguments. For now, I want to make a few very general comments:
1. After Blakely, it is possible and perhaps helpful to set up a dichotomy between statutory structured sentencing systems like Washington's (which now must grant defendants the (waivable) right to a jury trial on any and all facts which raise the effective maximum sentence) and traditional indeterminate sentencing systems (in which judges have enormous and essentially unfettered discretion to consider (or not consider) any and all facts of interest to the sentencing judge). I find it truly remarkable that the SG and USSC are suggesting, and that a group of former federal judges are expressly stating, that the federal sentencing guidelines "more analogous" to a traditional indeterminate sentencing systems than to Washington's structured sentencing system.
2. Though all the briefs make a game effort at arguing that "Blakely does not apply to the Federal Sentencing Guidelines," I saw precious little argument in the briefs that Blakely should not apply to the FSG. I might find the arguments to distinguish the federal system more compelling if I could fully understand what would be so harmful about defendants having a (waivable) right to a jury trial on facts which raise their effective maximum sentence. I understand that there could be great harm in how Congress or others might respond to defendants having such a right. But I am not sure why a court's interpretation of the scope of individual rights can or should be influenced by the (speculated) response of other institutions to those rights.
3. As I discussed at some length in my analysis of the Sixth Circuit's decision in Koch (details here), many of the arguments put forward to distinguish the federal system structurally would be much more compelling 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). But, as the SG's brief concedes at pp. 24-25, the USSC both in design and in operation is far more like, in Justice Scalia's words, a "junior-varisty Congress" than like a Judicial Branch coach. Moreover, as Steve Chanenson has so astutely noted in his recent article, Congress' recent passage of the PROTECT Act has constrained and transformed the USSC to make it more like a "traditional" legislative agency and less like a group of judges making sentencing rules for themselves.
What Booker and Fanfan are about (and not about)
A quick read of the briefs submitted in Booker and Fanfan yesterday, especially the amicus briefs, could give one the impression that the Supreme Court's job in these cases is to decide the broad policy question of whether guideline sentencing reforms are a good idea. The "Senators brief" especially reads in this vein, and the way that brief frames the question presented is almost comical:
Whether, or to what extent, the Court should give effect to the intent of Congress in enacting the Sentencing Reform Act of 1984 to eliminate the intolerable disparities that had plagued the federal sentencing system by creating an integrated and cohesive sentencing guidelines system.
In my view, it is inaccurate and quite dangerous to understand or frame the issues in Booker and Fanfan in this way; there is absolutely no way, no matter what the Supreme Court says, that the decision in these cases will formally or even functionally destroy the possibility of any guideline sentencing reforms.
Indeed, this is why I think it is very significant that states have not filed any amicus briefs in support of petitioners. States apparently recognize, correctly in my view, the truth in Justice Scalia's statement in Blakely that this line of cases "is not about whether determinate sentencing is constitutional, only about how it can be implemented in a way that respects the Sixth Amendment." Kansas retained its guideline system even after its state Supreme Court gave Apprendi a broad reading, and I think the states all realize that they can continue modern sentencing reform efforts even if defendants are given broad procedural rights at sentencing.
Booker and Fanfan are not about the theory or soundness of guideline reforms in general. The cases are both formally and functionally about what rights defendants have under the Sixth Amendment (and the Due Process Clause). Obviously, the definition of these rights will necessarily impact how jurisdictions can implement guideline reforms, and also profoundly impact whether the federal sentencing system can continue to operate in its current form. But it is in my view misguided and harmful to even suggest that the Supreme Court inthese cases is in the role of a super-legislature with the task of deciding whether the general policies motivating sentencing reform are justifiable.
If observers (and legal realists) feel it is appropriate to frame Booker and Fanfan as cases about sentencing policy rather than as cases about constitutional doctrine, I think the dialogue should move down one level of abstraction. Rather than defended the broad value of guideline sentencing reforms in general, I would like to hear a defense of the current federal sentencing system in operation. Ironically, given all the strong evidence that the exercise of prosecutorial discretion and other forces has produced great disparities in the operation of the federal guidelines (see, e.g., this report from the USSC on disparities in substantial assistance departures), a good case could be made that striking down the federal system in Booker and Fanfan would "give effect to the intent of Congress in enacting the Sentencing Reform Act of 1984 to eliminate ... intolerable disparities."
And my commentary begins...
The array of interesting (and lengthy) briefs filed in Booker and Fanfan have my mind racing with comments and questions, and I am very pleased to see others already sharing thoughtful commentary in the comments sections of the blog.
In an effort to organize my own thoughts, and perhaps the thoughts of others, I will try sub-dividing my commentary, at least for now, into three broad categories: (1) the general scope, meaning and impact of the Booker and Fanfan cases, (2) the applicability of Blakely to the federal sentencing guidelines, and (3) the severability of the federal sentencing guidelines if Blakely applies. (I have created new topical archives categories for each of these, and will start this morning with a brief post on each subject.)
Before getting into the nitty-gritty, I want first to generally praise the work of the amici whom have already spoken and also to highly encourage additional amicus efforts. Whatever one thinks of the substance of the points made in the amici briefs submitted so far, it is extremely valuable for the Supreme Court in Booker and Fanfan to hear a range of perspectives from a range of persons, institutions and branches.
Notably, in addition to the "official" executive branch view of Booker and Fanfan coming from the SG's office, yesterday we received views from the legislative branch in a brief from three US Senators, from the judicial branch in a brief from a group of former federal judges, and an agency view in a brief from the US Sentencing Commission. (As future commentary will highlight, I think it is much more appropriate to describe the USSC as an agency in general, despite its "official" placement in the Judicial Branch.)
At this moment, it is fun to speculate about what competing views we might hear in the next round of briefing: will other legislators or judges write amicus briefs in support of respondents? Given all the vocal complaints by both former and current judges about the federal sentencing system, might a group of judges forcefully express these views in an amicus brief? (Do the canons of judicial ethics even allow active judges to file an amicus brief in a case of this nature? Could and will the various official and unofficial judicial organizations file a brief?)
It also seems worth noting who has not yet filed a brief. To my knowledge, no state or group of states has filed a brief in support of the petitioners. In addition, and perhaps even more telling, I have heard no mention of a brief from any law enforcement agency or advocacy group representing police or prosecutors.
September 1, 2004
The judges' amicus brief
With sincere thanks yet again to my many new friends "in the field," I now have a copy of (and provide below) the brief submitted on behalf of a group of former federal judges (who were apparently led by former SDNY US District Judge John Martin).
I am slowly but surely "consuming" all the rich and interesting briefs filed today, and I hope to comment at length about them tomorrow and throughout the long weekend ahead.
And the briefing begins...
I have on good authority that two amicus briefs have already been filed in Booker and Fanfan. One is reportedly on behalf of "an ad hoc group of former federal judges in support of neither party," and the group apparently consists of 19 former judges. Unfortunately, I do not (yet) have an electronic copy of that brief.
I do have a copy linked below of the other brief, which is in support of the petitioner and comes from three noteworthy US Senators: The Honorable Orrin G. Hatch, The Honorable Edward M. Kennedy and The Honorable Dianne Feinstein. The brief's statement of the question presented should give you a flavor for its contents:
Whether, or to what extent, the Court should give effect to the intent of Congress in enacting the Sentencing Reform Act of 1984 to eliminate the intolerable disparities that had plagued the federal sentencing system by creating an integrated and cohesive sentencing guidelines system.
Though I have to dash to class and then a faculty meeting, I hope to have more information about all of today's briefing (and also more documents for downloading) before the close of business today.
UPDATE: With thanks to many "field correspondents," I now have and provide below the Solicitor General's brief in Booker and Fanfan. More briefs will be posted if and when I get them, and commentary will be posted in the wee hours.
MORE: With thanks to another "field correspondent," I now have and provide below the USSC's brief in Booker and Fanfan.
Sex offender sentencing
The law and policy of sex offender sentencing is always interesting and often quite depressing. My FSR co-editor Professor Nora Demleitner has put together a number of Federal Sentencing Reporter issues related to this topic, including this recent FSR issue focused particularly on risk assessment. And as many know, the infamous Feeney Amendment to the PROTECT Act provided for the most dramatic changes to federal sentencing in the arena of sex offenses — even though, as I discuss in Deciphering a Rosetta Stone of Sentencing Reform, 15 Fed. Sent. Rep. 307 (June 2003), the initial impetus for reform seemed to flow from DOJ concerns about undue leniency in white-collar cases.
Two recent cases involving sex offenders have today caught my attention. First, earlier this week, the Supreme Court of California, in People v. Barker, ruled that a sex offender "just forgetting to register" could be convicted as a "willful" violator of the state's sex offender registration requirements. Though the case is principally about the meaning of "willful," I found staggering the fact that Barker, by forgetting to register in a timely manner (he had registered properly before), could have received under the operation of California's three-strikes law a sentence of 25 years to life! Interestingly, the trial judge in Barker's case used his discretion to dismiss "all but one of his 10 prior strike convictions in the interests of justice" so that he could sentence Barker to only 9 years' imprisonment for his failure to register.
Second, as briefly noted last week, a Michigan state judge declared Michigan's state sentencing guidelines unconstitutional after Blakely. I was graciously provided with a copy of the ruling by Judge Timothy Pickard, in which he explains his view that parts of Michigan sentencing law involve mandatory guidelines and that, following the logic of Judge Cassell's opinion in Croxford, no part of the Michigan system should be applied when one part is constitutionally defective. Though I do not know enough about Michigan law to comment on the soundness of this ruling, it is noteworthy that this article suggests that Judge Pickard reached his conclusion in order to be able to sentence a child molester to a much longer prison sentence than the state guidelines provided.
First official Blakely reversal in California
As Jonathan Soglin reports here over at Criminal Appeal, the first "official" California Blakely reversal happened yesterday in People v. Perry, No. A104398 (Cal. Ct. App. Aug. 31, 2004). The case involved the imposition of a four year upper-term sentence after defendant's guilty plea to "infliction of corporal injury to a cohabitant resulting in a traumatic condition." The court explained:
In this case, the trial court imposed the aggravated term based on the following factors: (1) "the defendant was armed with or used a weapon at the time of the commission of the offense;" (2) "the defendant has engaged in violent conduct which indicates he’s a danger to society;" (3) "his prior convictions as an adult are numerous and of increasing seriousness;" (4) "he was on a grant of summary probation at the time this crime was committed;" (5) "the defendant’s prior performance on summary probation has been unsatisfactory." Because under Blakely, at least four of these five factors must be determined by a jury, we conclude the trial court erred.
In expanding upon this conclusion, the court interestingly speculated on the scope of the "prior convictions" exceptions for purposes of applying factor (3) above. But then the court, after explaining its review standards, held that reversal was still required:
We need not decide whether the trial court (rather than the jury) may, after Blakely, find that defendant's crimes were of increasing seriousness, because we cannot determine, from this record, whether the four improper factors were "determinative" for the trial court. To put it another way, we cannot determine whether the trial court would have imposed the upper term based solely on defendant's increasing criminality.
Jonathan Soglin, who surely knows California law much better than I do, comments that if the California Supreme Court "follows this approach, and it should, reversals are likely in many other cases."
What exactly are Blakely "facts"?
A group of cases handed down on Tuesday by the Minnesota intermediate appellate courts continued the state's trend of punting Blakely claims back to sentencing courts for initial briefing and consideration. See, e.g., State v. Vance, 2004 WL 1925143 (Minn. App. Aug 31, 2004); Smith v. State, 2004 WL 1925436 (Minn. App. Aug. 31, 2004); State v. Griffin, 2004 WL 1925829 (Minn. App. Aug. 31, 2004). A prior series of Minnesota remands on Blakely grounds can be found here .
However, two other recent opinions from Minnesota provide more examples of efforts to read Blakely narrowly and also raise issues discussed in conjunction with Ohio law in this formalism meets functionality post. In State v. Henderson, 2004 WL 1925395 (Minn. App. Aug. 31, 2004), the court holds that "Blakely does not apply" to a judge's upward departure from the guidelines based on a judicial finding that the defendant's "present offense is a felony that was committed as a part of a pattern of criminal conduct." And in State v. Allen, 2004 WL 1925881 (Minn. App. Aug. 31, 2004), the court concludes that "Blakely does not appear applicable" in a case involving an upward departure based on a judicial finding that the defendant was "not amenable to probation." Both cases, without much analysis, seem to be saying that the judge's justification for the enhancement was based on a "legal" conclusion, not a factual finding that implicates Blakely.
The notion that Blakely only requires narrow jury fact-finding, and still permits judges to make distinct "legal" sentencing determinations, finds some support in Justice Scalia's concurring opinion in Ring v. Arizona. In explaining his view of the Court's holding that juries must find the aggravating factors which justify the death penalty, Justice Scalia emphasizes that:
today's judgment has nothing to do with jury sentencing. What today’s decision says is that the jury must find the existence of the fact that an aggravating factor existed. Those States that leave the ultimate life-or-death decision to the judge may continue to do so — by requiring a prior jury finding of aggravating factor in the sentencing phase or, more simply, by placing the aggravating-factor determination (where it logically belongs anyway) in the guilt phase.
I read this passage to suggest that, at least in Justice Scalia's view, state law might still authorize judges to make a "legal" conclusion to enhance a sentence as long as that conclusion is based on a fact found by a jury or admitted by the defendant. Yet, spinning out this argument eventually run smack into the Blakely holding itself: arguably the sentencing judge's finding of "deliberate cruelty" was not a pure finding of fact, but rather involved a conclusion of law based on some facts that may have been admitted by the defendant. Moreover, Justice Scalia's Blakely opinion speaks of limits on the judges' sentencing authority "without any additional findings."
In other words, though Blakely and its predecessors speak of juries as finders of facts, perhaps the proper reading of the decision is that a jury must make any and all findings of whatever nature that are required by state law to permit an enhanced sentence. That is, Blakely may mean that if state law requires any finding to authoirze an increased punishment — whether that finding is called a question of fact or a question of law or Mary Jane — then that finding must be made by a jury or admitted by the defendant. If this is the proper understanding of Blakely, then I think the Minnesota decisions in Henderson and Allen are erroneous.