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.
The Respondents' Briefs in Booker and Fanfan
I have now received the brief filed on behalf of Respondent Fanfan in the Supreme Court. It can be downloaded here:
I expect to have the Booker brief for posting soon, too.
UPDATE: And here it is:
Here come the amici for Respondents
In what I suspect is just the first two of a number of amicus filings, I have received the amicus briefs being filed by Families Against Mandatory Minimums and by the National Association of Criminal Defense Lawyers with the Supreme Court today in the Booker and Fanfan cases. The FAMM and NACDL efforts, both which address the applicability of Blakely to the federal guidelines and severability issues, can be downloaded here:
I hope to add any and all the other amicus filings I receive to this post and to use a separate post for the filings of the parties. Check back in later in the day, since I believe all the briefs must be filed this afternoon.
UPDATE: And now I have in copies of amicus briefs filed by the Washington Legal Foundation and by the National Association of Federal Defenders and by the New York Council of Defense Lawyers. The WLF and NAFD and NYCDL efforts can be downloaded below:
What Blakely is really about: adversarial versus administrative justice
Aided by yesterday's two wonderful Wall Street Journal articles (discussed here and here) and a great student comment at last week's Harvard panel, I think I finally have Blakely figured out. Blakely is really a battle between five Justices who champion an adversarial model of sentencing in which sentence-enhancing facts must be proved to a jury beyond a reasonable doubt, and four Justices clinging to a now-dated administrative model of sentencing where, in Justice Scalia's words, "a lone employee of the State" makes all critical findings and determinations.
The WSJ articles provide additional evidence of just how much modern federal sentencing has become a (prosecutor-controlled) administrative system of criminal justice. As the articles explain, US Sentencing Commission data reveal that 97 of every 100 federal convictions are now secured through guilty pleas. Sentences are increased by prosecutors by alleging at sentencing offenses and other facts that never were charged or proved, and guideline calculations are based almost exclusively on information in a pre-sentence report prepared by a probation officer who gets most offense information from a federal prosecutor. I am now reading Blakely as a statement that this administrative system of sentencing cannot persist if we are truly committed to an adversarial system of criminal justice.
The sparring between Justices Scalia and Breyer makes so much more sense when viewed through this adversarial/administrative lens. Justice Scalia assails Justice Breyer's "esteem for non-adversarial truth-seeking processes" and asserts that "Our Constitution and the common-law traditions it entrenches ... do not admit the contention that facts are better discovered by judicial inquisition than by adversarial testing before a jury." Slip op. at 17. And Justice Scalia concludes his Blakely opinion with this telling passage:
One can certainly argue that both these values [of efficiency and fairness] would be better served by leaving justice entirely in the hands of professionals; many nations of the world, particularly those following civil-law traditions, take just that course. There is not one shred of doubt, however, about the Framers' paradigm for criminal justice: not the civil-law ideal of administrative perfection, but the common-law ideal of limited state power accomplished by strict division of authority between judge and jury.
The adversarial/administrative distinction also helps explain other aspects of the Blakely story. It explains why Justice Breyer, traditionally considered a liberal, is fighting against extending Sixth Amendment rights to sentencing. A former professor of administrative law and author of leading administrative law texts (see his bio here), Justice Breyer obviously has an affinity for administrative processes even at sentencing. It also explains my fear expressed here that the arguments of the Blakely dissenters might undermine claims of a right to counsel at sentencing. Lawyers are essential for fair adversarial processes; but if sentencing is to be more administrative, then the right to a lawyer is more questionable.
Finally, the adversarial/administrative distinction also helps explain why Williams v. New York, 337 US 241 (1949), which permits lax procedures in an indeterminate-sentencing regime, may have been sound at the time it was decided. Recall that Williams expressly defends lax sentencing procedures based on the then-dominant rehabilitative "medical" model of sentencing: the Williams court stressed that "[r]eformation and rehabilitation of offenders have become important goals of criminal jurisprudence," and the Court sought to foster "modern penological procedural policies" by ensuring judges have "the fullest information possible concerning the defendant's life and characteristics." The Williams court stressed that allowing judges access to out-of-court information is grounded in "the belief that by careful study of the lives and personalities of convicted offenders many could be less severely punished and restored sooner to complete freedom and useful citizenship." Id. at 249.
If in fact the prosecutor, probation officer, judge and parole official are all trying to devise the least severe sentence to "cure" a "sick" offender, an administrative model of sentencing makes sense. Just as patients are not thought to need "procedural rights" when being treated by a doctor, defendants at the time of Williams were not thought to need such rights when being sentenced by a "medical model" sentencing court seeking to give "careful, humane, and comprehensive consideration to the particular situation of each offender." But, of course, "modern penological procedural policies" have changed drastically over the last 30 years. Though the demise of rehabilitation as a penal theory may be overstated, there is no doubt that sentencing is today predominantly about imposing punishment, not about devising a cure.
As Judge Nancy Gertner highlighted in her Mueffleman decision (available here), in the federal system the major decisions about the imposition of punishment have been made by Congress and the Sentencing Commission (an administrative agency). Thus, after a prosecutor makes a variety of discretionary charging and bargaining choices, the judge's role is "transformed to 'just' finding the facts, now with Commission-ordained consequences" but "with fewer safeguards, less formality, and far less legitimacy" than what should prevail in a fair adversarial system.
In short, the Blakely decision ultimately reflects the fact that we reformed the substance of our sentencing laws without reforming the procedures. Blakely finally recognizes that, in a world in which sentencing is about punishment and no longer about curing, we should no longer be comfortable relying on administrative procedures at sentencing.
Interesting state Blakely news
Though the federal sentencing story will take center stage later today when the respondents and amici file briefs in Booker and Fanfan, today's papers have more interesting news on Blakely in the states. From Maine, this article details that the Maine Supreme Court later this week will hear additional argument in two pending cases in order to examine the impact of Blakely.
From Tennessee, this article reports on the interesting and challenging work of the Governor's Task Force (previously discussed here and here) which was assigned the task of devising an effective response to Blakely for Tennessee. In addition, this editorial urges a set of responses to Blakely for Tennessee and federal sentencing.
September 20, 2004
The Vera Institute Speaks Again!!
As detailed here, the Vera Institute of Justice — which has been at the forefront of state sentencing reform through its State Sentencing and Corrections Program (SSC) — was at the forefront of covering the impact of Blakely in the states through its publication last month entitled "Aggravated Sentencing: Blakely v. Washington – Practical Implications for State Systems."
Vera has now kept up the great work by having now released — just in time for its big conference noted here — a second report entitled "Aggravated Sentencing: Blakely v. Washington – Legal Considerations for State Sentencing Systems." The full report can be accessed here, and it provides the most comprehensive and insightful account of the mess that Blakely may create for the states. The report is a must-read for all Blakely fans, and I will quote here a valuable overview provided by SSC director Dan Wilhelm:
As Blakely continues to sow confusion and anxiety in many quarters of the criminal justice world, it is worth noting that much of the reported chaos has been confined to the federal system.... State sentencing systems, varied as they may be, simply are not as dependent on judge-found facts at sentencing — the heart of Blakely — as is the federal system. This means provisions that offend Blakely are easier to avoid for the time being, as state courts begin to sort out how the decision applies to their systems....
Many states have better recent experience in gathering together politically accountable officials to think about and construct sentencing reforms that are not only workable and public-safety minded but that squarely observe other aims — related to fairness, proportionality, and resources — that led many to revisit their sentencing schemes in the first place. The existence of productive entities such as sentencing commissions, working groups, legislative judiciary committees, and others gives many states a leg up in tackling Blakely.
It also presents a potential opportunity, as this second in our series of Blakely papers suggests. Can the occasion of the Court’s decision encourage states not only to fix problems in their systems created by Blakely but also to explore policy changes that further protect the public while advancing justice? It is admittedly a tall order. The coming months will tell whether states seize and exploit the challenge the Supreme Court has handed them.
Powerful report with lots of data and insights
In a post last week here, I previewed a report coming from the Death Penalty Information Center entitled "Innocence and the Crisis in the American Death Penalty." The full report is now available here, and it includes a lot of interesting data on the application of the death penalty over the last 30 years. As the title suggests, the report's focus is particularly on the number, pattern and nature of exonerations of persons sentenced to death.
Though there is much in report worthy of thoughtful commentary, I was struck particularly by this observation concerning the realities of sentencing reform:
New Proposals for Legal Reform: numerous public and private commissions have made recommendations to improve the reliability and fairness of the justice system in handling capital cases. Some have called for a halt to all executions while this crisis is being addressed. For the most part, only the most modest reforms have been adopted.
This telling observation is one of the many reasons I have lately become a fan of the Blakely decision. No shortage of public and private commissions have made recommendations to improve the operation of the federal sentencing system; for just very recent examples, consider the potent ABA Kennedy Report (available here) and the American College of Trial Lawyers report (available here). And yet, before Blakely, all the "reforms" were going in the opposite direction as evidenced by the Feeney Amendment and the proposal of "Feeney II" (background here). After Blakely, there is real talk of real reform (although I realize a lot of folks inside and outside the Beltway expect things to get worse, not better, in the wake of Blakely).
More insights on severability
In posts here and here last week, I raised various practical questions about the reach and consequences of the Solicitor General's arguments that, if Blakely applies to the federal system, then the federal guidelines are not severable. But, lest I be accused of placing pragmatism over principle, I should note here that I have thought from the outset that principled severability analysis also would support finding the guidelines severable because to do so seems to me to be more in keeping with the intent of Congress when it passed the Sentencing Reform Act.
Helpfully, late last week I received a copy of a district-court brief (with the client's name redacted) filed by Patrick O'Donnell of the firm of Harris, Wiltshire & Grannis, which does an extremely effective job of articulating why I have instinctually felt that finding the guidelines severable would better effectuate the intent of Congress when it passed the SRA. This brief can be downloaded below, and here are a few key passages:
The legislative history of the Sentencing Reform Act of 1984 (SRA) shows no particular intention by Congress that judges rather than juries find sentencing elements, and the determinative-sentencing Guidelines system can operate with either judge or jury finding such elements. Moreover, the legislative history does show a very deliberate effort to cabin judicial power, and Blakely’s holding that the Sixth Amendment requires juries rather than judges to find sentencing elements is entirely consistent with Congress's purposes in enacting the SRA....
Taking the Guidelines as "advisory" only while proceeding to sentence on Guidelines-driven judicial fact-finding, as the government suggests, is tantamount to simple defiance of not just Blakely's instruction but of Congress itself. That approach would defy Blakely by simply following the Guidelines approach and denying the defendant's Sixth Amendment right to a jury verdict on the decisive accusations, while giving lip service to Blakely itself. And it would defy Congress in at least three ways: 1) the frustration of Congress's decision to implement a determinative sentencing system, 2) the rejection of the value judgments made by the Sentencing Commission and approved by Congress regarding specific offense conduct, and 3) the judicial adoption of an alternative Congress expressly rejected: "[t]he Judiciary Committee rejected a proposal that would have made the sentencing guidelines only advisory." Mistretta, 488 U.S. at 367.
More great WSJ coverage of our administative system of justice
Of course, I have long had a warm spot in my heart for WSJ reporter Laurie Cohen and the Wall Street Journal (especially since they did this profile of this blog). But the coverage they Cohen and Gary Fields of the WSJ give of the federal sentencing system today merits an extra loud shout out. In addition to the terrific article on the humans lives in the Blakely balance discussed here, the WSJ also today has a fantastic piece entitled "Federal Sentencing Changes Could Strain Probation System" about the place of the probation officers in the federal sentencing system and concerns about the impact of Blakely on their role and responsibilities.
Both WSJ articles are so rich with information that they merit multiple reads, and neither can be succinctly summarized. Nevertheless, one telling line in the probation officers' article merits quoting here:
[I]t would be hard to overstate the importance of probation officers' investigations in the length of federal sentences. Often sentences are "based almost exclusively on the information in the pre-sentencing report," [New Mexico's US Chief District] Judge Martha Vazquez says.
Both WSJ articles are so important not only because they provide a human perspective on all the legal debates surrounding Blakely, but also because they dramatically reinforce the realities of how "administrative" the federal system of criminal justice has become. I hope to be able to post at length later today about the contrasting realities of an adversarial and an administrative criminal justice system.
The human face of Blakely
I could not have been more wrong when I said there are not many Blakely news stories this morning. In fact, today's Wall Street Journal has an article by Laurie Cohen and Gary Fields which may be the the most important Blakely article in some time because it tells the human stories behind the operation of the federal sentencing system and its "relevant conduct" rules.
The article is entitled "Reasonable Doubts: How Judges Punish Defendants For Offenses Unproved in Court," and has the subtitle "Stories of Five Convicts Show That Charges in Dispute Can Multiply Prison Time." The lead of the story captures the essence of the human tales: "Laurence Braun learned the hard way that being acquitted of a crime doesn't always stop you from being punished for it."
In addition to telling compelling stories about the use of acquitted and uncharged conduct to increase federal sentences — including the case of Jimmy Bijou, who had a federal judge exclude a jury from considering tainted drug evidence but thereafter at sentencing used the exact same evidence to double his sentencing range — the article is also extremely important for being the first to report on an issues I have be asking about for some time, namely how many federal cases have Blakely factors (background here). According to this WSJ article:
More than 44% of all cases in 2002, the last fiscal year for which data are available, had enhancements that may now be thrown into question by the Blakely ruling, according to a U.S. Sentencing Commission internal memo.
Morning sentencing commentary
Though there are not many Blakely news stories this morning, interesting sentencing commentaries can be found in this op-ed piece on Blakely from the LA Times, this editorial about mandatory minimums in The Salt Lake Tribune, this editorial about efforts to amend California's Three-Strikes Law in The San Francisco Chronicle (which I discussed recently here). Also, Howard Bashman at How Appealing has collected more commentary on California's Three-Strikes Law here.
September 19, 2004
Mark your calenders, big weeks ahead
There are so many noteworthy and important sentencing events in the coming weeks, my PDA might just run out of memory. As noted below, September 21 is a major day for at least three reasons, and the Blakely fun does not let up after that at all:
1. As detailed here, the Heritage Foundation has scheduled for Tuesday, Sept. 21 an event entitled "Federal Criminal Sentencing: Where Are We and Where Do We Go Next?". The participants in this event are all huge names in the modern story of federal sentencing reform.
2. As noted before here, the Vera Institute of Justice has been doing path-breaking work on what Blakely means for state sentencing systems. And from Sept. 21-23, Vera will conduct a major conference entitled "The Realities of a Post-Blakely World." The folks at Vera report that the meeting is to provide state delegations an "opportunity to engage with each other and with leading practitioners and experts to develop feasible strategies – both immediate and longer-term – for responding to the Supreme Court's ruling in Blakely."
3. Last but certainly not least for Sept. 21, the Respondents and all supporting amici in Booker and Fanfan have their briefs due to the Supreme Court.
4. As noted before here, on Sept. 24 the University of Toledo Law Review will host a symposium on "The Legal Barriers to Reentry in Ohio: Collateral Sanctions in Theory and Practice." An updated version of the schedule for the event can be downloaded here:
5. Keeping up the pace, Sept. 27 is when the Government's reply brief is due in Booker and Fanfan, and oral arguments in these cases is slated for the afternoon of Oct. 4.
6. As noted before here, Oct. 8-9 brings Stanford Law School's major event entitled "The Future of American Sentencing: A National Roundtable on Blakely." An updated version of the plans and amazing list of participants for this event can be downloaded here:
Do Justice Breyer and other Blakely dissenters think the Sixth Amendment right to counsel should not apply at sentencing?
As noted here, the more I think about Blakely the more questions I have. And, as I re-read the Blakely dissents, I started to question how far the Blakely dissenters might carry their concerns with the practical consequences of extending the reach of the Sixth Amendment.
Specifically, it is hard not to notice how often Justices O’Connor and Breyer lament the "costs" of Blakely’s holding. (Justice O'Connor uses the word "cost" five times, and expresses her practical concerns in many other ways as well.) This sort of language is what previously prompted me here to describe the debate over Blakely in terms of a battle of principle versus pragmatism: the dissenters do not seem to present principled arguments against the majority's holding, they seem to rely on pragmatic concerns about the consequences of the majority's holding.
But, upon reflection, I wonder if it might be more appropriate to suggest that the Blakely debate is not as much about ends, but about means. The dissenting Justices are surely principled, they may just believe that Blakely's holding — that defendants at sentencing have a Sixth Amendment jury trial right and a Due Process right to proof beyond a reasonable doubt — does not serve constitutional principles. Justice Breyer, for example, summarizes his "concerns about the serious practical (or impractical) changes that the Court’s decision seems likely to impose upon the criminal process" by noting:
the tendency of the Court’s decision to embed further plea bargaining processes that lack transparency and too often mean nonuniform, sometimes arbitrary, sentencing practices; about the obstacles the Court’s decision poses to legislative efforts to bring about greater uniformity between real criminal conduct and real punishment; and ultimately about the limitations that the Court imposes upon legislatures' ability to make democratic legislative decisions.
As always, Justice Breyer articulates his views thoughtfully and effectively, but this passage got me to realize how much the Sixth Amendment's right to counsel may undermine the constitutional principles (or "practical" concerns) that Justice Breyer seems to champion.
First, realize that defense lawyer help secure valid plea agreements; ergo, defendants' right to counsel tends to "embed further plea bargaining processes." Second, we have learned from capital sentencing literature that who gets the death penalty often depends on who has the worst lawyer, not who commits the worst crime; ergo, because of difference in the quality of provided counsel, the right to counsel may pose obstacles "to legislative efforts to bring about greater uniformity between real criminal conduct and real punishment." Third, legislature have repeatedly shown that they would rather not pay for defense counsel (public defender programs are chronically underfunded); ergo, the requirement that states' must provide counsel "imposes upon legislatures' ability to make democratic legislative decisions." And, of course, considering Justice O'Connor's focus on costs, it is quite costly for states to have to provide defendants with a lawyer.
In sum, my basic point is that the practical arguments against granting defendants a Sixth Amendment jury trial right and a Due Process right to proof beyond a reasonable doubt at sentencing might also argue against granting defendants a Sixth Amendment right to counsel at sentencing.
Of course, I am not seriously worried that any court would re-consider the now long-established right to a lawyer at sentencing. Indeed, the Supreme Court recently strengthened that right in a guidelines world through its unanimous holding in Glover v. US, 531 U.S. 198 (2001). (In fact, in Glover, Justice Kennedy asserted for the whole Court that "our jurisprudence suggests that any amount of actual jail time has Sixth Amendment significance".)
But my point is that we are very comfortable — indeed, very proud — of bearing the "costs" of providing defendants with lawyers because we understand that a truly just criminal justice system should bear the cost of extending the Sixth Amendment right to counsel to sentencing. Similarly, I am starting to think Blakely is the first step in recognizing that a truly just criminal justice system should bear the cost of extending the Sixth Amendment jury trial right and a Due Process right to proof beyond a reasonable doubt to sentencing.
Striking Three Strikes?
Today's LA Times Magazine has this (very long) article about Proposition 66, the initiative on the November ballot to amend California's Three Strikes law. The article is well worth the time it takes to read; there is a wealth of information and insights about the realities of the law itself and about the politics surrounding efforts to change the law. Relatedly, Jonathan Soglin over at Criminal Appeal has collected here an array of recent newpaper articles on Proposition 66.
Interestingly, and not surprisingly, there are a number of websites and web resources which provide a lot of (competing) information about California's Three Strikes laws and the Proposition 66 amendment effort. For example, here is one site called Restore Three Strikes, and here is a competing site called No On 66. In addition, I recently was informed that the Justice Policy Institute (JPI) will soon release a new report entitled "Three Strikes and You’re Out: An Examination of the Impact of Strike Laws 10 years after their Enactment," which asserts that the majority of people incarcerated under three strikes laws are "non-violent" offenders and that states without Three Strikes laws actually saw greater decreases in violent crimes than those with Three Strikes laws. JPI, which describes itself as "a nonprofit research and public policy organization dedicated to ending society’s reliance on incarceration and promoting effective and just solutions to social problems," has done a lot of previous important and valuable work on three strikes laws and on other issues relating to the scope of imprisonment (see, e.g., publications available here and here).
In my mind, the debate over Proposition 66 reflects many aspects of the current, often confused, public dialogue over crime and punishment. Everyone wants violent, repeat offenders put away for a long time, and but the broad reach (and great expense) of California's Three Strikes law raises questions about the justice and efficacy of its approach to achieving that goal. How politicians and the public come to view and frame these issues in the context of Proposition 66, and the ultimate fate of using "direct democracy" to cut back on a harsh mandatory sentencing law, may well provide important insights into the the future of sentencing reform and its relationship to concepts of democracy (a topic I recently discussed here). Stay tuned.