September 25, 2004
Still more interesting state decisions
Though the federal courts have, perhaps quite justifiably, issued relatively few Blakely decisions as the Booker and Fanfan arguments approach, the state courts have to keep sorting out Blakely without any reassurance that helpful guidance will be coming from the Supreme Court anytime soon. (Indeed, as I suggested here, the rulings in Booker and Fanfan could actually make life harder, not easier, for the states). And the state courts continue to issue interesting Blakely decisions.
For example, in State v. Fell, 2004 Ariz. App. LEXIS 137 (Ariz. App. Sept. 23, 2004), the court considered whether a trial court could impose a natural life prison term on a first-degree murder charge without the state having to prove to a jury beyond a reasonable doubt the aggravating circumstances the state previously had alleged when seeking the death penalty. The court ultimately concluded that Blakely did not require "a jury to find beyond a reasonable doubt that certain aggravating circumstances exist before a trial judge in Arizona may sentence a defendant convicted of first-degree murder to a natural life prison term rather than life with the possibility of parole."
In Commonwealth v. Junta, 2004 Mass. App. LEXIS 1080 (Mass. App. Sept. 23, 2004), the court dropped a footnote to explain: "The recent United States Supreme Court decision in Blakely has no application here, as the Massachusetts sentencing scheme provides for indeterminate sentences."
Meanwhile, in Blakely bellweather Ohio, the court in State v. Eckstein, 2004 Ohio App. LEXIS 4594 (Ohio App. 1st Dist. Sept. 24, 2004), avoids Blakely by asserting that statutory "findings that must be specified prior to a departure from the minimum prison term are discretionary factors to be used by the trial court in determining what sentence to impose within the authorized range."
More California aftershocks
I noted here that every time I log on there is another batch of noteworthy decisions from the California intermediate appellate courts. Proving my point, I return from my Toledo trip to find People v. Mallory, 2004 WL 2110084 (Cal. App. 2 Dist. Sept. 23, 2004), and People v. Barnes, 2004 WL 2137361 (Cal. App. 6 Dist. Sept. 24, 2004).
Mallory, which is "nonpublished," reaches this brief but consequential conclusion: "pursuant to Blakely, consideration of the fact that the victim suffered great bodily injury and the fact that appellant's prior convictions were of increasing seriousness to enhance the sentence violates appellant's Sixth Amendment rights, and as a result the sentence is invalid."
In contrast, Barnes is a (partially) published ruling which provides an extended examination of Apprendi and Blakely and waiver issues. Barnes is also especially noteworthy for the clever (and I think proper) way it reaches its conclusion "that defendant's sentence complied with Blakely as it was within the statutory maximum authorized by the jury's verdict and facts admitted by defendant." Though cross-case comparisons are not easy, the final analysis in Barnes seems similar to the analysis employed by US District Judge Connor in US v. Johns (discussed here).
A bit of Blakely news
A few article of Blakely note have been in the papers in the last few days. This article discusses the recent oral argument in the Maine Supreme Court in a case now raising Blakely issues, while this article notes the unsuccessful Blakely claims made by Former Louisiana Governor Edwin Edwards and his son Stephen who were seeking to alter their federal racketeering and fraud sentences. And this article notes a case in which a Tennessee prosecutor conceded at sentencing that Blakely "barred him from arguing for anything more than the minimum sentence."
And this article is the first of what I expect will be many "Supreme Court previews" that gives prominent attention to the Booker and Fanfan cases to be heard on the first day of the new term.
September 24, 2004
So much "collateral" work to do
I have on-line access at the University of Toledo College of Law just after the conclusion of this conference on "The Legal Barriers to Reentry in Ohio: Collateral Sanctions in Theory and Practice." The event was very well-run and I learned quite a lot about the national and Ohio stories of collateral sanctions. Though the folks at the Sentencing Project here provide, better than I can, a full background on these pressing issues, I came away from the conference with a renewed apprecition of the importance of, and challenges of, addressing and reforming the sometimes unknown and yet always consequential collateral legal sanctions which flow from criminal convictions.
For the conference, students on the Toledo Law Review prepared a chart which detailed that there was a total of all 359 (!) collateral penalties and disqualifications in the Ohio code alone. (And, of course, one main point of this conference was to highlight that, in contrast to the ABA's recommendation, most of these collateral sanctions do not appear in the criminal code.) Speakers at the conference, which included practitioners, policymakers and scholars, detailed the many ways in which these law and related social realities pose problems with America being, in President Bush's words, "the land of second chance." President Bush is to be praised for discussing these re-entry issues in his 2004 State of the Union address, and I wonder what has become of his proposal for "a four-year, $300 million prisoner re-entry initiative to expand job training and placement services, to provide transitional housing, and to help newly released prisoners get mentoring, including from faith-based groups."
Professor Bowman speaks yet again!
Professor and FSR editor Frank Bowman has yet again proven that I am not the only one who cannot stop writing about Blakely. In a follow-up to his widely-discussed memos to the US Sentencing Commission (available here and here) and his earlier pragmatic argument against Blakely (see his "Train Wreck" piece available here), Frank has produced the introductory Editor's Observations for the next Federal Sentencing Reporter issue on Blakely in which he seeks to "articulate a constitutional theory of how crime is defined and punished that is better and less formalistic than Justice Scalia's." This effort, entitled "Function Over Formalism: A Provisional Theory of the Constitutional Law of Crime and Punishment," can be downloaded here:
In addition, I am pleased to report that I have received my advance hard copy of FSR first Blakely issue (detailed here), and that final proofs are being polished on the next special FSR Blakely issue. Keep checking this space for complete details about this latest issue, which has an October 2004 cover date and should go to press next week. Recall that at this link you can order a subscription to FSR and/or purchase individual issues, and at this link you will find a place to sign up to receive an e-mail alert when new issues of FSR come on-line.
I was extremely gratified to see a number of the Supreme Court briefs filed earlier this week citing articles from both FSR Blakely issues. Here's hoping that SCOTUS sees fit to do the same when deciding Booker and Fanfan.
Juvenile convictions and the "prior conviction" exception
Thanks to a fast hotel connection (and funny travel sleep patterns), I am on-line and have time to post about an interesting recent Oregon state case, State v. Riley, 2004 WL 2108228 (Or. App. Sept. 22, 2004), which explores the scope of the Apprendi/Blakely "prior conviction" exception. In Riley, the specific issue concerned the use of "a juvenile adjudication in the calculation of [Riley's] criminal history score, resulting in a longer sentence than he would have received if the adjudication had not been used."
I have noted before here and here that the scope and application of the "prior conviction" exception to the Apprendi/Blakely rule will need clarification before long. The Riley decision details that there is already a federal circuit split on the specific issue of whether a juvenile adjudication is "the functional equivalent of a 'prior conviction'" for purposes of Apprendi, and the Riley court actually uses the fact of this legal disagreement to conclude that "the trial court's use of defendant's juvenile adjudication in calculating his sentence was not obviously and indisputably error."
The legal debate over juvenile adjudications within the "prior conviction" exception is fascinating for a number of reasons. First, of course, as noted here and here, the very exception itself is theoretically shaky. Second, because juveniles are not afforded the right to a jury trial, juvenile proceedings are not subject to procedures which may give adult prior convictions the added reliability justifying an exception to the Apprendi/Blakely rule. Third, the court split on this issue is not just between federal circuits, compare US v. Smalley, 294 F.3d 1030 (8th Cir. 2002), with US v. Tighe, 266 F.3d 1187 (9th Cir. 2001), but it also encompasses major state court rulings. See State v. Brown, 2004 WL 1490192 (La. July 06, 2004).
September 23, 2004
Off to Toledo to learn about collateral sanctions
Blogging may be light over the next 36 hours as I head to Toledo to participate in this conference where I will be discussing — surprise, surprise — some preliminary views on what Blakely might mean for the law and policy of collateral sanctions.
Though I hope to have internet connectivity at times, I may not be back on-line until late Saturday. In the meantime, I can finally read the respondents' briefs in Booker and Fanfan. And fellow Blakely junkies can always look to Jason Hernandez at the Blakely Blog, who is back at it with noteworthy posts here and here and a very ambitious simple plan here for discussing all the Supreme Court briefs.
More brief brief thoughts
I have now finished a very quick read of all the amicus briefs filed in support of the respondents in Booker and Fanfan (available here). Though all these briefs deserve a close re-reading, I already have a lot of reactions.
First, I must say that I find the briefs' analysis of the initial question — whether Blakely applies to the federal guidelines — not all that exciting (perhaps because the answer to this question seems obvious to me). Nevertheless, each amicus contributes something interesting to this discussion, and collectively the briefs successfully debunk the fictions discussed here that the guidelines are not statutory and that the US Sentencing Commission is an independent agency in which judges make sentencing rules for themselves. (The NACDL's coverage of this issue, along with its dense 8-page Appendix of congressional meddling with the USSC and the guidelines, is particularly effective.)
Second, the different approaches that the amici take on the issue of severability are fascinating. Though a full exegesis of this issue could fill dozens of posts, it is so interesting to see NAFD highlight how easy it is to work Blakely into the existing guidelines, while FAMM urges the rejection of the SG's approach to advisory guidelines as it outlines its own more just vision of advisory guidelines, while the NACDL flags significant Ex Post Facto and Double Jeopardy issues.
Third, I am troubled a bit by what seems missing from some of the amicus briefs — namely, a truly compelling account of the injustices which can result from an adminitrative system of sentencing (detailed here) in which civil standards of proof and hearsay evidence can lead to massive enhancements of prison terms. Because amici do not have to focus on legalese, I was expecting to see a bit more discussion of the equities and a call for invigorating broader principles of justice and due process in federal sentencing. In this respect, the powerful Wall Street Journal article by Laurie Cohen and Gary Fields earlier this week highlighting the human stories behind the operation of the federal sentencing system (discussed here) may still be the most potent "amicus" effort to date.
The NY Times has this important article about the important issue of felon disenfranchisement laws. The article reports on two studies documenting that "those laws have a disproportionate effect on African-Americans because the percentage of black men with felony convictions is much larger than their share of the general population." The folks over at TalkLeft have terrific coverage of this article and all the issues it raises here, and they note that they have lately been posting a lot on this topic "because it's that important."
As I have note before here, the intersection of election law and policy and sentencing law and policy runs deep. And I am proud that my own OSU Moritz College of Law has this great site covering all sorts of election law issues, to which I have contributed here some broad coverage (and lots of great links) on the topic of felon disenfranchisement.
So many California cases, so little time
California has definitely become the pace-setter for states dealing with Blakely issues. As noted here, California's Supreme Court even beat SCOTUS to the punch in granting review of a major Blakely issue (and the folks at the First Division Appellate Project now have this very helpful page collecting materials on both Blakely cases to be reviewed by the California Supreme Court).
Moreover, it seems every time I log on to Westlaw or Lexis there is another batch of decisions of note from the California intemediate appellate courts. Just yesterday, three more interesting California decision were handed down, two of which found Blakely inapplicable to consecutive sentencing, see People v. White, 2004 WL 2106207 (Cal. App. 2 Dist. Sept. 22, 2004); People v. Park, 2004 WL 2106211 (Cal. App. 2 Dist. Sept. 22, 2004), and one of which summarily reversed a sentence as violative of Blakely, see People v. Butler, 2004 WL 2106213 (Cal. App. 2 Dist. Sept. 22, 2004).
A Westlaw search reveals that there are already nearly 50 California cases on-line addressing Blakely claims or issues (though a number of these decision are technically "nonpublished"). And, as detailed here by Jonathan Soglin "splits of authority are developing in California on various Blakely-related questions, including which aggravating factors does Alamendarez-Torres control, and how waiver and prejudice work in the Blakely context."
The threat of new mandatories
Many folks who recognize flaws in the federal sentencing guidelines are not ready to celebrate their possible (partial) demise in Booker and Fanfan because of fear that Congress will replace the guidelines with an array of harsh mandatory minimum sentencing statutes. That fear might be quite well-founded, especially with the news that H.R. 4547, a federal sentencing bill discussed previously here and described by others here as Feeney II, is moving through the legislative process.
H.R. 4547, which carries the title "Defending America’s Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2004," is styled as a measure to promote drug treatment while protecting children. But the bill includes a broad slate of harsh mandatory minimum sentences for a wide range of drug crimes. Families Against Mandatory Minimums explains the bill's most troublesome features here and provides a full analysis of the bill's provisions here.
This morning, H.R. 4547 is being marked up in subcommittee, and the folks at FAMM have indicated that they are expecting the bill to pass out of subcommittee. I will be interested to hear if the Blakely debate, good or bad, has any impact on this process. It strikes me that, even though Harris right now remains good law for the proposition that facts triggering mandatory minimums do not have to be proven to a jury beyond a reasonable doubt, I would think a wise and shrewd legislator might seek to build such procedures into the enactment of any new sentencing structures.
UPDATE: From a GFOB ("Great Friend of Blog"), I have heard that the "subcommittee as expected voted to report H.R. 4547 to the full House Judiciary Committee and staff on both sides said that opponents of the bill 'held their fire' for what is to be a fight in the full committee, sometime next week." The GFOB also sent along a group letter on the bill (downloadable below), which raises a host of Blakely concerns in addition to criticizing the substance of the bill.
Morning Blakely stories
We find today, coast to coast and in state and federal courts, reports on a range of cases being impacted by Blakely. This article from Rhode Island notes the disputes over the sentencing of Providence's former Mayor Vincent A. Cianci Jr. and his one-time top aide. This article discusses the ruling (noted here) by an Arizona appellate court to prevent the state from withdrawing from a plea agreement that the court had previously accepted.
This article notes the decision by Colorado U.S. District Judge Daniel Sparr to delay sentencing in a bank robbery case due to Blakely. And this article from Maine discusses a case in which the Maine Supreme Court will be considering Blakely issues.
September 22, 2004
First Circuit plain error approach to Blakely
Proving yet again (as stressed here) that Blakely justice and procedure now depends very much on the Circuit in which a case is litigated, in US v. Savarese, No. 04-1099 (1st Cir. Sept. 22, 2004), the First Circuit again gave a Blakely claim short shrift. In Savarese, similar to the approach it took in Morgan (discussed here), the First Circuit relies on plain error doctrine to reject a Blakely claim:
[W]e conclude here that, even if Blakely is held to apply to the Federal Guidelines, there is no basis for reversal in this case.
The appellant did not raise the jury trial issue in the district court, nor did he request a jury trial with respect to factual issues relating to the sentencing. Thus, we review the district court’s enhancement of Savarese's sentence for plain error....
[T]he defendant did not dispute the factual basis underlying any of the enhancements. Under the Supreme Court’s decision in Johnson [v. United States, 520 U.S. 461 (1997)], we conclude that this forecloses a finding of plain error.... [T]he district court’s error under Blakely, if any, in finding the facts underlying the enhancements of the defendant’s sentence was not plain error.
An amended version of US v. Johns
Late last week I discussed at some length here and here the noteworthy facts, rulings and analysis in US v. Johns, 2004 WL 2053275 (M.D. Pa. Sept. 15, 2004). I am pleased now to be able to post a pdf copy of an amended version of United States v. Johns, 03-CR-250-16 (M.D. Pa. Sept. 15, 2004). The opinion is also available at the Middle District of Pennsylvania website here.
I have been told that most of the changes are minor, but of note are the insertion of footnote 11 and additions to (renumbered) footnote 14. Here it is:
Download united_states_v. Johns, 03-CR-250-16.pdf
Waiting, waiting, waiting....
Marcia Oddi over at the Indiana Law Blog here notes a noteworthy ruling authored by Judge Easterbrook today in US v. Malik, No. 03-3404 (7th Cir. Sept. 22, 2004). In Malik, Judge Easterbrook explains that the defendant's failure to raise Blakely issues in the district court will not preclude him from doing so in an ordered resentencing:
Because Malik must be resentenced, the district court will need to take account of United States v. Booker, 375 F.3d 508 (7th Cir. 2004), cert. granted, No. 04-104 (U.S. Aug. 2, 2004). Malik failed to make a Booker-like argument in the district court, but he is free to develop this contention at a new sentencing after Booker. Defendants may raise after a remand new arguments based on statutes or opinions that post-date the original sentencing and are not logically foreclosed by the appellate decision. [cites omitted] Appellate mandates may limit the issues that are open on remand, see Pearson v. Edgar, 153 F.3d 397, 405 (7th Cir. 1998), but we impose no such restrictions; Malik should be resentenced from scratch....
Little could be gained by resentencing Malik immediately, while legal uncertainty prevails and there is a substantial risk that whatever approach the district court adopts would be disapproved within a few months by the Supreme Court. The district court should defer resentencing Malik until after the Supreme Court has decided Booker and then proceed as appropriate in light of that decision.
Though I think the Seventh Circuit's decision to allow the defendant to "be resentenced from scratch" is itself significant, Marcia Oddi thinks the last paragraph suggests that the Circuit is calling "a halt to sentencing until Supreme Court acts in Blakely/Booker." I am not sure if that's exactly what Judge Easterbrook and the Seventh Circuit is saying in Malik, but it is not an unreasonable inference.
Brief brief comments
Slowly and not so surely, I am working my way through some of the Booker and Fanfan briefs filed yesterday (available here and here). I have decided to focus first on the amicus briefs, in part because it is fun and interesting to see the different ways that different folks talk through similar issues. In this vein, the NAFD brief earns significant bonus points for (quite effectively) seeking to discuss distinct issues in distinct ways; the WLF and NYCDL briefs earn a few demerits for (somewhat ineffectively) seeking to avoid the severability issue.
Though in-depth comments will come later, I want to note here how interesting it is to read these briefs while thinking about Blakely as a decision seeking to vindicate democratic values (as suggested here), or as a decision seeking to vindicate an adversarial system of justice (as suggested here and here).
Critically, from these perspectives, the initial question of whether Blakely should apply to the federal guidelines becomes easier: the fact that the federal guidelines were created by an unelected administrative agency makes them even more problematic under either theory of Blakely. And yet, the subsequent severability question is arguably harder if one fully embraces the "democracy" or "adversarial justice" reading of Blakely: the fact that the federal guidelines were created by an unelected administrative agency may suggest that no part of this system ought to be salvaged. (Of course, as detailed in so many posts in this space, any and all of these visions of Blakely's principle has to be weighed against post-Blakely pragmatism. The NAFD brief is so potent because it works through the important pragmatic concerns in unique and effective ways.)
Putting all of this together, I have of late come to think of Justice Scalia's decision in Blakely as the ultimate vindication of his dissent in Mistretta. This, in turn, leads me to wonder about other equally historic and consequential examples of a judicial "I told you so!"
Insights about Blakely's impact in Ohio
As noted here and here, Ohio appellate courts have expressed a variety of views about the meaning and application of Blakely in Ohio. Helpfully (or perhaps not too helpfully), attorneys with the Ohio Sentencing Commission have issued an entertaining and informative, but not in any way definitive, Blakely memo. The memo, which can be accessed here, effectively canvasses different ways in which Blakely might impact Ohio state sentencing law. But, as the introductory snippets below highlight, the memo hardly provides a conclusive assessment:
This memo discusses the Blakely case and two plausible — dramatically different — interpretations of how it might apply to judicial fact-finding under Ohio’s current criminal sentencing structure.
On June 24, 2004, the United States Supreme Court released its decision in Blakely, sending shudders through many state houses and courts. The High Court held that facts considered by a judge in criminal sentencing — other than criminal history — must be authorized by the jury’s verdict. Scholarly observers asked, “What the heck does that mean?” How courts answer the question could mean that Ohio’s criminal sentencing structure is basically sound or that critical changes are needed....
Perhaps capturing a fairly universal view on Blakely, in the midst of the memo's analysis there is this astute comment: "If you are confused by Blakely and its competing interpretations, you’re human."
More interesting state developments nationwide
Though we all have lots of federal briefs to read, the state courts continue to work through an array of Blakely issues in an array of legal settings.
For example, from Arizona yesterday we get an interesting decision in Aragon v.Wilkinson, 2004 WL 2093357 (Ariz. App. Sept. 21, 2004), which involved a "special action petition arguing that the trial court abused its discretion by granting the State's motion to withdraw from a plea agreement that the court had previously accepted." The State sought to withdraw the plea agreement because of concerns that Blakely would preclude the imposition of an enhanced sentence, and the trial court allowed the plea agreement to be withdrawn. But the Arizona appellate court decided it should:
grant relief by vacating the trial court's order, which permitted the State to withdraw from a plea agreement entered with Aragon and previously accepted by the court. In light of Blakely, the maximum sentence the court may impose absent jury findings must be based only on the facts admitted by Aragon. However, the court may convene a jury to find any facts supporting imposition of an aggravated sentence.
From Minnesota, we get another Blakely remand of an upward departure, see State v. Behr, 2004 WL 2093999 (Minn. App. Sept 21, 2004), as well as two cases which essentially avoid the issue of Blakely's retroactivity, see Davis v. State, 2004 WL 2093964 (Minn. App. Sept. 21, 2004); Morris v. State, 2004 WL 2094675 (Minn. App. Sept. 21, 2004). From Tennessee, in State v. Cooper, 2004 WL 2093262 (Tenn. Crim. App. Sept. 20, 2004), we get a Blakely remand in a DUI context.
In California, we get another (unpublished) decision indicating that Blakely impacts the imposition of an upper-term sentence. See People v. Sidic, 2004 WL 2095547 (Cal. App. 2 Dist. Sept. 21, 2004). And in People v. Lemus, 2004 WL 2093427 (Cal. App. 4 Dist. Sept. 20, 2004), there is a bit of sparring over Blakely's applicability in California: the majority concludes that defendant Lemus' sentence is problematic after Blakely because "the trial court's decision to impose the upper term sentences was based on fact finding on matters not contained within the jury verdicts." But Judge Benke dissented on this point, contending that "California's sentencing scheme is entirely consistent with the principles discussed in Apprendi v. New Jersey and its progeny, Blakely."
September 21, 2004
More Blakely-related events of note
As previously noted here, the Heritage Foundation today conducted an event entitled "Federal Criminal Sentencing: Where Are We and Where Do We Go Next?". An attendee colorfully described the event as "mostly blood pressure raising stuff for a defense guy." You can see what this means at this link, where a webcast of the event is archived.
In addition, Professor Len Orland of the University of Conneticu Law School report that tomorrow evening (Sept 22) from 5:45pm to 7:45pm, he will be moderating a panel entitled "Federal Sentencing —An Impending Crisis?" for the Federal Bar Council at the SDNY Courthouse. On the panel are heavy-hitters including USS Commissioner/Judge Ruben Castillo, SDNY US Judge Gerard Lynch, Former EDNY US Attorney Alan Vinegrad and D Conn. US Attorney Kevin J. O’Connor.
The joys of brief reading
Thanks to a persistent printer, I now have a swelled redweld of printed briefs to go along with my swelled e-mail in-box. Many thanks to everyone who sent along copies of briefs, and I hope readers will take advantage of the comments feature to share thoughts about new Booker and Fanfan wisdoms. I hope to be able to do my own commentary on the briefs in the days ahead (although with over 100 pages from the parties and even more from amici, I fear I will not be able to do as much analysis of this round of briefing).
I can, though, already share a few superficial observations. First, the respondents won the battle of the amici on pure numbers. Six amicus briefs were filed in support of respondents (the five today here and the one last week here), while only two amicus briefs were filed in support of petitioners (recall that the judges' brief was technically filed not in support of either party). Second, though most of the respondents briefs come from traditional defender groups, the amicus effort by the Washington Legal Foundation adds some interesting diversity to the groups and interests supporting Booker and Fanfan. Indeed, I could not help but notice from the WLF website that Attorney General John Ashcroft has praised WLF as "independent, respected, and influential." I suppose how influential, at least in this case, remains to be seen.
Finally, for now, I must note how my new perspective on Blakely in terms of adversarial versus administrative justice detailed here has already given me new insights about the last round of briefing. Notably, the defenders of the existing guidelines regime are all entities which greatly benefit from a system of administrative justice: the SG represents DOJ and the prosecutors who are the chief (case-specific) administrators in the federal sentencing system; the USSC is an administrative agency which is the chief (system-wide) administrator of the federal sentencing system; and the Senators represent the legislative interest in continuing to be able to punish harshly without all the bother and expense that an adversarial system necessarily creates. And, tellingly, the judges' brief seems to reflect the fact that at least some judges are not all that troubled by an administrative sentencing system as long as the judges' themselves have the power (i.e., the "substantial judicial discretion") necessary to be the true chief administrator.