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September 7, 2004

The Blakely earthquake hits North Carolina

In what I believe are the first two cases from the North Carolina state courts dealing with Blakely, today in State v. Speight, 2004 WL 1960082, (N.C. App. Sept. 07, 2004) and State v. Allen, 2004 WL 1960333 (N.C. App. Sept. 07, 2004), two different appellate panels found, without much hesitation, that Blakely rendered unconstitutional aspects of North Carolina's state sentencing system.

In Speight, the court minced no words in identifying the Blakely problem and in rejecting the government's argument that a Blakely error should be deemed harmless:

Defendant received two consecutive aggravated sentences of a minimum of twenty and a maximum of twenty-four months for involuntary manslaughter and a consecutive aggravated sentence of twelve months for impaired driving. As the jury did not decide the aggravating factors considered by the trial court, defendant's Sixth Amendment right to a trial by jury was violated. See Blakely.

Nonetheless, the State argues that under a harmless error analysis, defendant's sentences should be upheld. However, as explained in State v. Allen, "[o]ur Supreme Court has definitively stated that when 'the [trial] judge [has] erred in a finding or findings in aggravation and imposed a sentence beyond the presumptive term, the case must be remanded for a new sentencing hearing.'" Accordingly, we grant defendant's motion for appropriate relief and remand this case to the trial court for resentencing consistent with the holding in Blakely.

In Allen, the court more fully discusses how the provision for imposing "aggravated sentences" in North Carolina "appears substantially similar to the portion of Washington's criminal sentencing statute analyzed in Blakely." Interestingly, according to the Allen court, state lawyers in North Carolina have been conceding after Blakely that aggravated range sentencings constitute a violation of a defendant's constitutional rights. (This apparently proper concession of Blakely's reach by North Carolina lawyers of course stands in sharp contrast to what we are seeing from federal lawyers in the federal courts, as discussed here and here).

Filling out its rejection of the state's harmless error claims, the Allen court explains:

Our Supreme Court has definitively stated that when "the [trial] judge [has] erred in a finding or findings in aggravation and imposed a sentence beyond the presumptive term, the case must be remanded for a new sentencing hearing." State v. Ahearn, 307 N.C. 584, 602 (1983). In the case sub judice, it is undisputed that the trial judge unilaterally found the existence of an aggravating factor and, thereupon, sentenced defendant in the aggravated range. The State's argument, when viewed in light of the ruling articulated in Ahearn, must fail, as this Court should properly remand the case for resentencing. Accordingly, we grant defendant's motion for appropriate relief and remand this case to the trial court for resentencing consistent with the holding in Blakely.

September 7, 2004 in Blakely Commentary and News, Blakely in the States, State Sentencing Guidelines | Permalink | Comments (5) | TrackBack

Pitch for a law-themed disaster movie?

As noted here by Professor Orin Kerr at The Volokh Conspiracy and here by applicant Chris Geidner at Law Dork, today is the official start of the federal clerkship application mania. The massive numbers of applications in transit today has me thinking of a hollywood pitch for a law-themed disaster movie:

"What happens to federal judges and their earnest staff when a tidal wave of clerkship applications floods a chambers already reeling from a number 10 Blakely earthquake?"

To a law geek like me, this pitch sounds as exciting as any of these recently inked Hollywood deals. But I need a catchy title. Suggestions? (If you scroll down the Hollywood deals list linked above, you will see that "The Passion of the Clerks" has already been taken by director Kevin Smith.)

September 7, 2004 in Blakely Commentary and News | Permalink | Comments (1) | TrackBack

While you were barbequing...

I did get some R&R over the weekend, but I could not help spending parts of the Labor Day laboring over the briefs filed in Booker and Fanfan. Some of my (not-too-brief) brief commentary includes reviews of the Bizarro judges' brief, the mis-filed Senators' brief, and the page-turning briefs from the SG and USSC. In addition, this post on federalism and retroactivity probes some deeper issues lurking in Booker and Fanfan.

Finally, I wonder if the Fourth Circuit took advantage of the long weekend to finally finish an opinion in Hammoud. It is now over 5 full weeks since the court issued its (opaque) order declaring Blakely inapplicable to the federal guidelines, but recommending that district courts announce alternative sentences. As detailed here, the compelling facts in Hammoud are perhaps slowing down the Fourth Circuit (recall that Hammoud had more than 150 years added to a sentence of less than 5 years based on judge-found facts).

September 7, 2004 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

September 6, 2004

Pulp Fiction

In addition to being a great movie worthy of great web analysis, pulp fiction is a term for a type of literature where selections of fictional short stories are printed in a bulk magazine for distribution. Thus, it makes a great label for the stories to be found in some of the Booker and Fanfan briefs filed in the Supreme Court last week. Though the deftly written briefs submitted by the SG and USSC do not make misrepresentations, the briefs certainly suggest (at least) five pulp fictions that merit focused examination:

Pulp Fiction 1: The US Sentencing Commission is a truly independent agency in which judges make sentencing rules for themselves. As discussed here and here, the USSC both in design and in operation is far more like, in Justice Scalia's memorable phrase, a "junior-varsity Congress" than like a Judicial Branch coach. If the federal sentencing guidelines were written by the Judicial Conference or developed through a true common-law process, the claim for distinct constitutional status might be more plausible. But the SG concedes at pp. 24-25, as it must, that Congressional control over the USSC is considerable. And, Judge Kathleen Cardone recently called "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" is "a legal fiction of the highest order" (details here).

PulpfictionPulp Fiction 2: The federal guidelines merely "channel" or "guide" judicial discretion. The SG and USSC briefs assert repeatedly that the federal guidelines merely guide or "channel judicial discretion." See, e.g., SG Brief at 22; USSC Brief at 15. But of course, as many judges and observers have highlighted, the federal guidelines are guidelines in name only. They are binding legal authority which, in the calculation of sentencing ranges, directly mandate what facts must be considered by judges and also how those facts must be considered. No matter how thoughtful or reasoned, a judge who seeks to exercise her discretion in any manner that does strictly follow the guidelines' "guidance" will be reversed.

Pulp Fiction 3: No parts of the federal guidelines are statutory. Only in a footnote does the SG concede that Congress directly amended the guidelines through the PROTECT Act, and the SG's brief does not explain the potential impact of that reality on the assertion that the Blakely is inapplicable to the federal guidelines because they "are the product of ... a body in the Judicial Branch." And, of course, Congress' direct changes to the guidelines is but one part of the PROTECT Act's alternation of federal sentencing to make the guidelines even more "legislative" and less "judicial."

Pulp Fiction 4: The SRA mandates, and effective guideline reform requires, lax procedures at sentencing. As discussed here and here, the briefs intimate that the success of federal sentencing reform depends upon sentencing judges being able to find many facts by a preponderance of the evidence. But, as many state systems have shown, effective guideline reform does not require complex judicial fact-finding of uncharged "relevant conduct." Moreover, as the USSC brief reveals, the federal guidelines' emphasis on judicial fact-finding of uncharged conduct comes as a result of (highly questionable) choices made by the original US Sentencing Commission, it was not mandated by the provisions of the Sentencing Reform Act. Indeed, the USSC could have devised guidelines from the outset which would have been fully compliant with the rule announced in Blakely — and such a system likely would have been more successful and better received than the current federal guideline system.

Pulp Fiction 5: The issues discussed above matter in the application of Blakely's rule. In the end, the briefs submitted in an effort to sustain the federal sentencing system are all staging Hamlet without the prince. Though pragmatic concerns about applying Blakely to federal sentencing are stressed, lacking in all the briefs is a truly principled argument that defendants should not have a right to a jury find beyond a reasonable doubt sentence-enhancing facts.

September 6, 2004 in Applicability of Blakely to FSG | Permalink | Comments (4) | TrackBack

Blakely, federalism, retroactivity and pragmatism

As I noted before here, it is significant and telling that no states have filed briefs in support of the federal government's position in Booker and Fanfan. And upon re-reading the briefs seeking to distinguish the federal system from the rule in Blakely, I was struck particularly by the federalism ironies in this chapter of sentencing reform and also by how the SG's arguments may sell out the states on the important question of Blakely's retroactivity. Let me explain:

1. The federalism ironies. Thoughtful observers of modern sentencing reform — from the ABA in its Standards for Criminal Justice to leading academics (see, e.g., Michael Tonry, Sentencing Matters (1996), Richard Frase, Sentencing Guidelines in Minnesota, Other States, and the Federal Courts: A Twenty-Year Retrospective, 12 Fed. Sent. Rep. 69 (1999)) — consistently report that state sentencing reform efforts have generally been successful while federal efforts have not. In Professor Tonry's words, "Few outside the federal commission would disagree that the federal guidelines have been a disaster [while] state guidelines [have] turned out ... surprisingly well." Sentencing Matters at pp. 9-13.

Yet now the SG and USSC are arguing that the distinctive features of the federal system — e.g., that the federal guidelines are (mostly) written by a (mostly ineffectual) commission and that they are (extremely) complicated and require punishment for uncharged conduct — should exempt the federal guidelines from the constitutional rule articulated in Blakely. The first irony is that highly questionable legal distinctions are being made in an effort to "save" perhaps the only guideline system that does not deserve saving. The deeper federalism irony is that arguments for a "federal exemption" to the Blakely rule are being made to a Rehnquist Court that has sought to reinvigorate federalism concepts by exempting states from federal legal burdens.

2. The states' retroactivity problem. Inherent to the SG's argument that Blakely does not apply to the federal guidelines is the assertion that Blakely was just an application of the Apprendi rule. See SG Brief at 18 ("Blakely thus applied the rule of Apprendi"); see also USSC Brief at 18-19. In other words, to exempt the federal guidelines from Blakely, the Supreme Court would essentially have to hold that Blakely was not a new rule, just an application of the rule announced in Apprendi. But so holding would then seem to require states to apply the (not-new) Blakely rule to all convictions not yet final when Apprendi was decided in June 2000.

In other words, the argument the SG is making in an effort to "save" the current federal sentencing system (which, by most accounts, is not worth saving) could have the effect of destroying at least four years of past state sentencing outcomes. Following the SG's arguments to its logical conclusion entails that the argument for exempting the federal guidelines from Blakely is not pragmatic at all, since pragmatically speaking such a ruling will create many more headaches and problems for state sentencing systems than it might save for federal sentencing. Thus, despite my earlier suggestion here that the federal debate over Blakely is a dispute between principle and pragmatism, I now realize that both principle and pragmatism support the application of Blakely to the federal system.

September 6, 2004 in Applicability of Blakely to FSG, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (5) | TrackBack

Great brief, wrong case: the three Senators' brief

In comments, Thomas Yerbich quite succinctly summarizes the amicus brief filed by US Senators Orrin G. Hatch, Edward M. Kennedy and Dianne Feinstein (available here):

The Senators' amicus brief provides an excellent recap of the history of the Sentencing Reform Act and its intended remedial effect. Notably absent from the Senators' amicus brief is any discussion whatsoever of the Sixth Amendment, in fact it is not even mentioned!

Indeed, I was struck while reading the brief that it would be an extremely effective in a case challenging mandatory minimum sentences or the provisions of the Feeney Amendment. The three Senators' brief stresses that the Sentencing Reform Act of 1984 (SRA) "intended sentencing judges to have flexibility to move a sentence both upward and downward within the applicable guidelines range based on an individualized consideration of the offender and his offense and, in unusual cases, to depart upward or downward outside of the guidelines range." Yet mandatory minimums and the Feeney Amendment do far more to undermine this intended "flexibility" and "individualized consideration" than would a holding in Booker and Fanfan that defendants have a right to have proven beyond a reasonable doubt facts requiring enhanced sentences.

Of course, Justices Kennedy and Breyer both appreciate that mandatory minimums undermine the laudable goals of the SRA. Justice Kennedy in his Koon decision stressed the importance of judicial departure authority within the SRA, and he has long assailed mandatory minimums as "unwise and unjust." (See, most recently, this important speech to the ABA last year.) Similarly, Justice Breyer has long lamented the impact of mandatory minimum statutes on the operation of the guidelines system he helped create:

[S]tatutory mandatory sentences prevent the Commission from carrying out its basic, congressionally mandated task: the development, in part through research, of a rational, coherent set of punishments.... Every system, after all, needs some kind of escape valve for unusual cases.... For this reason, the Guideline system is a stronger, more effective sentencing system in practice.

In sum, Congress, in simultaneously requiring Guideline sentencing and mandatory minimum sentencing, is riding two different horses. And those horses, in terms of coherence, fairness, and effectiveness, are traveling in opposite directions. [In my view, Congress should] abolish mandatory minimums altogether.


Speech of Justice Stephen Breyer, Federal Sentencing Guidelines Revisited (Nov. 18, 1998), reprinted at 11 Fed. Sent. Rep. 180, 184-85 (1999). Indeed, Senator Orrin Hatch himself has long been on record noting the major faults of mandatory sentences and calling for a complete reexamination of the issue. See Orrin G. Hatch, The Role of Congress in Sentencing: The United States Sentencing Commission, Mandatory Minimum Sentences, and the Search for a Certain and Effective Sentencing System, 28 Wake Forest L. Rev. 185 (1993).

In other words, as I have stressed in my own writings, the SRA was a great piece of legislation, but the federal sentencing system in practice has not in fact achieved its laudable goals. That is why I have suggested here that there is a strong case to be made that applying Blakely to the federal guidelines would in fact help give effect to the intent of Congress in enacting the SRA.

The three Senators' brief does not even mention the Sixth Amendment perhaps because it hard to argue that respecting defendants' rights to have facts proven to a jury beyond a reasonable doubt itself undermines the goals of sentencing reform. Of course, Justice Scalia and four other Justices obviously understand this when they stress that Blakely "is not about whether determinate sentencing is constitutional, only about how it can be implemented in a way that respects the Sixth Amendment." And these realities in part explain why I have speculated here that Justices Kennedy and Breyer may join the "Blakely five" before any Justice in that group shrinks away from carrying the Blakely principle to its logical conclusion.

September 6, 2004 in Applicability of Blakely to FSG, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

September 5, 2004

When did Judge Martin enter the Bizarro World?

This weekend I have had the chance to review the briefs filed in the Supreme Court last week in the Booker and Fanfan cases. Especially when reading arguments that Blakely should not apply to the federal guidelines, I am struck by how out of touch with reality the briefs seem to be. The briefs describe not the current federal guidelines system, but rather an idealized federal sentencing system — a system which could have come to pass after the enactment of the Sentencing Reform Act, but which does not really exist now. See generally A Common Law for This Age of Federal Sentencing: The Opportunity and Need for Judicial Lawmaking, 11 Stanford Law & Policy Review 93 (1999).

In subsequent posts, I hope to highlight the fairy-tale nature of parts of the SG and USSC briefs, but in this space I must first wonder out loud about the amici curiae brief filed by former US District Judge John Martin on behalf of an "ad hoc group of former federal judges." The brief itself, as well as some insightful reader comments about its "Alice-in-Wonderland quality," can be found here.

bizarro_cover As I was reading this brief, I could not help but think of the question that is the title of this post: "When did Judge Martin enter the Bizarro World?" As is well-known to true Seinfeld fans, the Bizarro World is a place inhabited by imperfect duplicates of Superman and his friends who do everything backwards. (I have uploaded the cover of this comic classic, and here is a link with helpful background on the basic bizarro concept and here is a link with a lot more about the place of Bizarro in Superman lore.)

For followers of federal sentencing, former US District Judge Martin has been something of a "Man of Steel" for his courageous decision to relinquish his lifetime appointment in part, he said, to protest the unjust nature of the federal sentencing process. In this widely discussed New York Times Op-ed entitled "Let Judges Do Their Jobs" (published exactly a year to the day before Blakely was handed down), Judge Martin explained that he was resigning from the federal bench because "Congress has tried to micromanage the work of the commission and has undermined its efforts to provide judges with some discretion in sentencing or to ameliorate excessively harsh terms." Judge Martin concluded his astute criticisms of federal sentencing by saying that "I never thought that I would leave the federal bench [but] I no longer want to be part of our unjust criminal justice system."

Similarly, this report of Judge Martin's remarks at the ABA Kennedy Commission hearings highlights some of the criticisms of federal sentencing he has been sharing with audiences around the country for the last year:

John Martin ... said that a system that does not have a departure rate of "25 to 30 percent cannot do justice." Absent appropriate judicial discretion to depart from the guidelines, federal sentencing is currently imposing sentences that are too harsh, Martin argued.... Martin criticized the system for forcing judges to impose "incredibly harsh sentences" without giving them the ability to properly differentiate between offenders.

But now — apparently after a trip to the Bizarro World (or should I say the Blakely World) — Judge Martin and others assert that federal judges have "broad judicial discretion" because the federal guidelines "substantially preserve a court's sentencing discretion" in a system "more analogous to the traditional indeterminate scheme" than to the "determinate statutory scheme at issue in Blakely." Martin Brief at pp. 5-6, 9-10. Perhaps in the Bizarro World it is true, as this brief claims, that the federal guidelines "more closely resemble the regime at issue in Williams than in Blakely," id. at 14, but most federal sentencing observers and participants likely would not consider this a fair description of the real world of federal sentencing today.

Also, apparently in the Bizarro World of federal sentencing the Feeney Amendment was just an odd footnote to the guidelines' preservation of "substantial judicial discretion," and the "24% departure rate in the Second Circuit" is more representative of federal sentencing realities than the "6% rate of departure in the Fourth Circuit." See id. at 13-22. But, even these pre-Feeney Amendment statistics show that the majority of federal circuits had a departure rate under 10% in fiscal year 2002. And, of course, the Feeney Amendment further constrained judicial discretion to depart, and it reversed legislatively the Supreme Court's Koon decision emphasized throughout the Martin brief. Moreover, if federal sentencing in the Second Circuit is sound because "judicial discretion over sentencing remains both broad and meaningful in those circuits that have recognized the full extent to the Guidelines' departure power," id. at 22, why did Judge Martin need to resign? He was a judge in the Southern District of New York, which is part of the Second Circuit.

Gosh knows many wish that federal sentencing was in fact like Judge Martin and his colleagues describe in their brief, and I laud the effort to emphasize the importance of substantial judicial discretion in a well-functioning sentencing system. Indeed, in my own writings I have stressed that an improved departure mechanism (and the eliminatation of many mandatory minimum sentences) could remedy much of what ails federal sentencing. See Balanced and Purposeful Departures: Fixing a Jurisprudence that Undermines the Federal Sentencing Guidelines, 76 Notre Dame Law Review 21 (2000).

But, as too many judges and defendants and defense attorneys know too well, federal sentencing now takes place in the Feeney World, not in the Bizarro World. Thus, it is hard to fully understand why Judge Martin is writing so forcefully in defense of a system that he himself felt he had to quit because it was unjust.

September 5, 2004 in Applicability of Blakely to FSG | Permalink | Comments (1) | TrackBack