October 16, 2004
So many state Blakely cases, so little time
The stories of Blakely's impact on state sentencing continue to percolate, and this past week was particularly eventful with noteworthy rulings from Indiana, Minnesota, New Jersey and Oregon. And I have not even had a chance to skim the 16(!) Blakely rulings coming from the California appellate courts this week alone.
Continuing his stellar work, my crackerjack research assistant has created a spreadsheet with a list of state cases to be found searching the allstates database in Westlaw for "Blakely & sentenc!" after June 24, 2004. For any number junkies out there, here is the data:
This spreadsheet shows that, as of October 16, a total 239 state Blakely cases are on-line. Interestingly, 23 states have had at least one Blakely decision come on-line, though the vast majority of these decisions come from California, Michigan, Minnesota, Ohio and Tennessee. And since I have seen a good number of state decisions which are not on-line, I am sure this data only presents an abridged version of the disruption that Blakely is causing in the states.
Having faith in prisons
This past week, the US Supreme Court agreed to hear Cutter v. Wilknson, an interesting case from the Sixth Circuit addressing the constitutionality of the Religious Land Use and Institutionalized Persons Act (RLUIPA). In Cutter, prisoners sued the State of Ohio claiming they were denied access to religious literature and ceremonial items, and the Sixth Circuit rejected the claim by invalidating RLUIPA as a violation of the Establishment Clause. More background on the case can be found in this AP article.
The case is big news at The Ohio State University Moritz College of Law because it involves something of a law school civil war. As detailed here, Professor David Goldberger, Director of Clinical Programs at OSU, represents the prison inmates, while Ohio Solicitor Douglas Cole, who is on leave from the OSU faculty, will represent the State of Ohio in the Supreme Court.
Though many will be watching this case for its broader implications for church-state relations, I find the case interesting against the backdrop of recent developments in church-prison relations. As detailed in interesting articles here and here, Florida has been experimenting with "faith-based" prisons, which house inmates who have chosen to take part in rehabilitation programs run by volunteers from religious groups. Though the constitutionality and efficacy of "faith-based" prisons are not without dispute, less-than-stellar recidivism data from other prison programming makes me at least "agnostic" about experimenting with faith-based approaches to criminal rehabilitation. Though Cutter may not directly impact the faith-based prison movement, the law and policy of religious involvement in corrections will likely be an issue of on-going concern for quite some time.
More Blakely cases move along
In this post here I wondered about whether and how federal cases are being processed while everyone awaits a decision in Booker and Fanfan. Though I would still appreciate additional feedback from readers in the comments, the newspapers help fill in the picture.
Specifically, here is an article from Montana detailing a sentencing decision by US District Judge Richard Cebull which copes with Blakely, and here is an article concerning a fraud case in California in which it is reported that, following a guilty verdict, Chief U.S. District Judge Vaughn Walker "is overseeing a second set of deliberations during which the jury will determine factors to be used in sentencing."
Back home, with still more insights
Another fascinating conference (followed by easy travel) has me home cheery despite being tired. As with all great conferences, the OCU 21st Century conference I participated in on Friday had too many highlights to readily summarize. At the well-conceived and well-run event, I learned still more about Blakely, and I'll share some of these thoughts in a post later this weekend.
But, as highlighted before here, the conference was about a lot more than Blakely, and all of the speakers were engaging and informative. It was especially fun to see Professors Paul Robinson and Franklin Zimring in action and in fine form. Both studiously avoided discussion of Blakely, though I kept wondering how Professor Robinson's varied theoretical insights about desert and also how Professor Zimring's varied empirical insights about the scale of imprisonment might map on to the post-Blakely world. Indeed, Professor Zimring in his remarks detailed three periods of rising imprisonment rates over the last 30 years, and I will be interested to see if the next decade could possibly, as a direct or indirect result of Blakely, have a much different data trend.
October 15, 2004
Read all about Booker and Fanfan
Hooray, the Supreme Court transcript in Booker and Fanfan is now available here (thanks to a reader for the tip). It is a great read — all 110 pages! — though I think most of the highlights have been previously detailed in press and blog reports.
I continue to find especially noteworthy and important the effort by Justice Kennedy at pp. 24-25 to figure out whether there is some way to distinguish different facts for Blakely purposes. Though Justice Kennedy does not expressly articulate the sort of offense/offender distinction that I discuss here, it seems clear that he is eager to avoid a post-Blakely world in which, for purposes of the jury trial right, we must be "in for a penny, in for a pound."
As I hope to explain later today at this conference (which will likely be keeping me off-line), I continue to believe my offense/offender distinction creates a sound and sensible way to divide up which facts must go to a jury. Moreover, a re-reading of Almedarez-Torres pointed me to the old case of Graham v. West Virginia, 224 U.S. 616, 629 (1912); in Graham, the Court permits the use of distinct procedures when sentencing on the basis of prior convictions, and justifies the ruling with this telling passage:
This conclusion [that a prior conviction can be subject to different procedures] necessarily follows from the distinct nature of the issue and from the fact, so frequently stated, that it does not relate to the commission of the offense, but goes to the punishment only, and therefore it may be subsequently decided.
October 15, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack
Oregon gives Blakely broad reading
As I have detailed here, I see an essential offense/offender distinction at the heart of the jury trial right. And earlier this week, a New Jersey appellate court in NJ v. Abdullah, 2004 WL 2281236 (N.J. Super. A.D. Oct. 12, 2004), relied on an offense/offender distinction to limit the reach of Blakely (details here).
But this idea has not carried the day on the other side of the country: an Oregon appellate court has now turned back a similar argument in State v. Warren, 2004 Ore. App. LEXIS 1305 (Or. App. Oct. 13, 2004), when considering Blakely's applicability to the state's dangerous offender sentencing scheme. Here is the Warren court's explanation of the offense/offender argument and the court's rejection of it:
[T]he state argues that, consistently with Apprendi, a fact that results in the enhancement of a defendant's sentence beyond the prescribed statutory maximum for a class of crime must be found by a jury only when that fact pertains to the manner of commission of the crime at issue, not when it "serves merely to characterize the defendant." The state reasons that, by recognizing an exception for facts relating to a defendant's prior convictions, the Apprendi Court implicitly recognized that other facts characterizing the defendant himself or herself, as opposed to facts pertaining to the commission of the crime at issue, also need not be found by a jury. According to the state, the Court's failure to mention any other types of facts that are not subject to a jury determination is of no significance because even the fact of a defendant's prior convictions was not at issue in Apprendi and the Court's mention of that type of fact was therefore mere dictum....
We disagree with the state's characterization of Apprendi. The Court made clear in that case that the relevant distinction relates, not to the type of fact at issue, but to the consequence of finding it, namely, whether or not such a finding results in a sentence beyond the prescribed statutory maximum for the offense found by the jury. The Court established as a matter of general principle that any fact that has the consequence of enhancing a prescribed statutory sentence constitutes, in effect, an element of an aggravated offense and therefore must be pleaded and proved. The Court then recognized an exception for one type of fact — a defendant's prior convictions — that may have that result. It explained, however, that such a fact need not be pleaded and proved only because it already has been subjected to a previous determination by a jury. In other words, the basis for the exception from the general rule is procedural, not substantive. Indeed, Blakely itself characterizes the principle regarding sentencing factors that the Court established in Apprendi as a "bright-line rule." Accordingly, the state's proposed substantive category of "facts characterizing the defendant" is irreconcilable with Apprendi.
Roper and categorial capital bars
The folks at the SCOTUS Blog have all the press accounts of the Roper argument assembled here, and many accounts highlight that Justice Kennedy was apparently moved by this amicus brief, authored by the state of Alabama and submitted on behalf of six states, which details a number of heinous murders committed by 16 and 17 year olds. Crime & Federalism explains here how the brief won him over, and further explains the effectiveness of the brief's advocacy for allowing states to execute persons who commit capital crimes as juveniles.
Though the facts of the murder cases in the Alabama brief are compelling, what really makes the brief effective is its framing of the issue before the Supreme Court in terms of individual cases. Such a framing is not inappropriate, since the Supreme Court is being asked to preclude the application of the death penalty in any individual case involving a juvenile offender. But, of course, the issue before the Court in Roper could be (and perhaps should be) framed in more systemic terms. For a terrific account of how best to cast arguments for categorical bars on the application of capital punishment, I highly recommend Carol Steiker & Jordan Steiker, Defending Categorical Exemptions to the Death Penalty: Reflections on the ABA's Resolutions Concerning the Execution of Juveniles and Persons with Mental Retardation, 61 Law & Contemp. Probs. 89 (Autumn 1998), which is available on-line here.
In other words, the real debate and question in Roper is whether a majority of the Supreme Court will focus on the sinner or on the system. I do not know how Roper is going to come out, but I do know the world is watching.
October 14, 2004
Better than okay in OK
I have a fast hotel connection here in Oklahoma City (where I am participating in this exciting conference tomorrow). And to celebrate all things Sooner, I cannot help linking back to the great O'Daniel decision by Chief Judge Sven Erik Holmes of the Northern District of Oklahoma here, and also a great pre-Blakey report from the Oklahoma Sentencing Commission here.
Seeking news (and data) from the federal sentencing courts
I am heading out the door for this great conference, and may not be back on-line for a while. While I am gone, I wonder if readers working in the federal criminal justice system might provide a status report on whether and how federal cases are being processed while everyone awaits a decision in Booker and Fanfan.
Today marks 16 weeks since Blakely was handed down. Operating at its usual pace of 1200 sentencings per week, this means that nearly 20,000 federal sentences should have been imposed since June 24, 2004. I have heard from various sources that sentencings have completely stopped in many federal courtrooms, but I also am certain that some cases continue to move through the pipeline. I wonder if the USSC or the AO or DOJ or anyone else has a real sense of the current case flow.
Evidence of the flow of cases continuing can be found in various places. For example, this article from Maine discusses the recent sentencing of a federal gun crime by US District Judge John Woodcock. The article interestingly notes that the defendant was allowed to plead to a four-year sentence, though Judge Woodcock apparently would have liked to impose a longer sentence and thought a longer sentence would have been in the cards pre-Blakely.
Relatedly, some federal case decisions recently appearing on Lexis (and helpfully collected by the folks at USSGuide) provide additional insights into what is transpiring "on the ground." For example, in US V. Banton, 2004 U.S. Dist. LEXIS 20401 (E.D.N.Y. Oct. 12, 2004), we get a glimpe into the work of Judge Weinstein and his commitment to giving Blakely factors to juries. In Banton, Judge Weinstein had the jury consider the facts for a "role-in-the-offense" enhancement, and he tells the jury that "even without enhancement defendant faces a very serious sentence." Here's how the case concludes: "The jury determined that with respect to each count, the amount of cocaine was more than 500 grams but less than 2000 grams, and that the defendant was an "organizer," "leader," "manager," or "supervisor," and thus eligible for a role enhancement under the guidelines. Defendant's objection to this two stage trial is overruled."
Moving to the front-end of federal criminal cases, we also have an interesting decision in US v. Jardine, 2004 U.S. Dist. LEXIS 20414 (E.D. Pa. Oct. 8, 2004), which addresses efforts by the government to cover all its Blakely bases though amended indictments. As detailed below, US District Judge Berle M. Schiller did not think much of the government's efforts:
In sum, this Court will not countenance the Government's attempt to leave irrelevant and prejudicial information in the Indictment "as a protective measure" "in anticipation" of pending Supreme Court cases, on the assumption that Booker and Fanfan will be decided in a certain way. It has been said that "the wheels of justice grind slowly," but the Government would prefer a dead stop....
[T]his Court notes that the Government has conducted its prosecution of this case in a piecemeal fashion. As set forth above, the charging instruments have included an Information against Robert Jardin, an Indictment against Robert Jardin and Bruce Jardine, a Superseding Indictment against those two, a second Superseding Indictment to incorporate the "Notice of Additional Factors," and now a Third
Superseding Indictment adding Dennis Jardine. All the while, though, the Government knew of all three Jardine brothers, and knew at least the broad outlines of their involvement in the alleged crimes.
This kind of inefficiency seemingly is the result of bureaucratic case management by officials in Washington, D.C. Perhaps these problems could have been avoided if the United States Attorney's office in the Eastern District of Pennsylvania was given appropriate authority. The Government is admonished that such confusion and indecisiveness is to be avoided.
The importance of waiver
As detailed here, the Office of the Federal Public Defender in the Northern District of Texas filed an amicus brief in Booker and Fanfan to discuss waiver issues, even though such issues are not directly before the High Court. The brief essentially argued that a defendant cannot and does not waive any Blakely rights by simply admitting facts in a plea agreement.
Perhaps the FPD ought to have lodged a copy of this brief in the Eighth Circuit, because in an unpublished case earlier this week the court did just what this amicus brief warned against. In US v. Martinez-Salinas, 2004 U.S. App. LEXIS 21153 (8th Cir. Oct. 12, 2004), the court summarily rejected the defendant's Blakely argument by noting simply that his (pre-Blakely) "plea agreement included stipulations as to drug quantity, protected location, and firearm possession."
Meanwhile, in the same part of the country, we get a waiver-related snippet from the Supreme Court of Colorado in Hulett v. Colorado, 2004 WL 2283440 (Colo. Oct. 12, 2004). The Court in Hulett simply denied certiorari, but Justices Martinez and Bender indicated that they "would grant as to the following issues:  Whether a guilty plea including a complete sentence advisement waives the right to have sentence enhancers tried to a jury as required by Blakely v. Washington, 124 S.Ct. 2531 (2004).  Whether sentences can be aggravated on the basis of earlier charges that were dismissed."
21st Century Sentencing
Though I will have a few more posts before I head to the airport, I am on the road again this afternoon to participate in this terrific sentencing conference at the Oklahoma City University School of Law. The conference, organized by OCU Professors Jean Giles, Barry Johnson and Arthur LeFrancois, is astutely entitled "Reforming the Reform: Sentencing in the Twenty-First Century," and further descriptions of the event and participants can be found here and here.
The folks at OCU deserve lots of credit for having the foresight to plan this conference well before the Blakely decision and also for having the insight that many critical sentencing topics besides Blakely merit continued attention. Though I will be on one big panel discussing Blakely (where I hope to get more feedback on my offense/offender ideas articulated here), the event appropriately starts with University of Pennsylvania Professor Paul Robinson exploring the fundamental question "What Should Sentencing Try to Achieve?"
After the Blakely discussion, UC Berkeley Professor Franklin Zimring will give a keynote on "The Scale of Imprisonment in the Proximate American Future," and afternoon panels will examine the important topics of "Race and Sentencing," and the "Economics of Sentencing." I am quite excited to be participating in this event, and especially looking forward to hearing what Professor Robinson — who was a member of the original US Sentencing Commission — and Professor Zimring — who has done great work on 3 Strikes in California and always integrates empirical research with policy analysis — think about our new sentencing world order.
I hope to have internet connectivity while traveling, though I suspect posting may be light from this afternoon through the weekend.
October 14, 2004 in Blakely Commentary and News, Federal Sentencing Guidelines, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0) | TrackBack
Highlights of Roper highlights
As is to be expected, there is lots of media coverage of Wednesday's Supreme Court argument in Roper v. Simmons, the case exploring whether it is still constitutional to execute persons who committed capital crimes before turning eighteen. Some of the longer pieces I have seen come from the New York Times, Boston Globe, St. Louis Post-Dispatch, USA Today, Bloomberg News, Knight Ridder.
UPDATE: Howard Bashman does his usual amazing job collecting news stories here, and he also continues to promise post his thoughts about the case soon.
New York University School of Law Professor Rachel Barkow has a very interesting article entitled "Administering Crime" which is now available through SSRN and is due to be published by the UCLA Law Review in 2005. Here is a link to the SSRN entry (where the draft article can be downloaded), as well as the article's abstract:
Although agencies are the dominant force in criminal law today, existing scholarship has largely failed to analyze how these bodies perform as agencies. We know little about how the institutional design of these agencies affects their output or whether the politics of regulation are different when an agency is responsible for the regulation of criminal justice issues as opposed to traditional regulatory areas. This Article takes up that task by evaluating the agencies charged with regulating one of the most important aspects of criminal law: sentencing. Many reformers turned to agencies to regulate sentencing because they did not trust the political process on its own to produce rational sentencing policy in a tough-on-crime culture. This Article explores what kind of agency model works for regulating criminal sentences if the goal is to create an influential agency that can temper rash political impulses. Drawing from administrative law, political science, and the actual experience of state and federal commissions, the Article demonstrates that, contrary to conventional wisdom, the agency model can succeed. But, unlike other substantive areas where an independent agency is seen as the most effective, an insulated agency model is not the answer when the agency is responsible for regulating criminal sentencing. Instead, the Article concludes that agencies responsible for sentencing are more efficacious when they are politically enmeshed and operate largely like interest groups. Just as with any other interest group, a well-connected agency that can produce politically salable information is more likely to have influence than one that is aloof from political pressures.
Sentencing news around the blogsphere
Fellow bloggers continue doing a fine job covering a range of sentencing stories: Michael Ausbrook of INCOURTS reports here on the latest Blakely developments in Indiana's state courts; Crime & Federalism reports here on a significant ruling by the Ninth Circuit involving downward departure from the federal sentencing guidelines; and Lyle Denniston at the SCOTUS Blog has an insightful account here of the SCOTUS arguments in Roper v. Simmons concerning the constitutionality of executing juvenile offenders.
October 13, 2004
Detwiler not (yet) decisive
With thanks to a reader who sent me the link to this article in the Oregonian, it seems that Judge Panner's dramatic decision in US v. Detwiler (discussed here with commentary here) — which declares the federal sentencing guidelines unconstitutional after the passage of the Feeney Amendment "because it violates the separation of powers doctrine" — will not become law of the district in Oregon. Here are some of the important developments detailed in the article:
A federal judge's conclusion that federal sentencing rules are unconstitutional won't be adopted by the rest of the federal bench in Oregon.
U.S. District Judge Ancer L. Haggerty, the chief federal judge in Oregon, said Tuesday that the judges made the decision not to adopt U.S. District Judge Owen M. Panner's ruling in United States v. Detwiler as the "law of the district." He said lawyers may cite Panner's opinion in sentencing matters, "but each judge will resolve the issues presented on a case-by-case basis."...
Barry Sheldahl, first assistant U.S. attorney for Oregon, said the U.S. attorney's office cannot appeal Panner's ruling until Detwiler is sentenced. He is scheduled to be sentenced later this month. Sheldahl said he expects that the U.S. attorney's office will ask Panner to reconsider his ruling, and if he declines, prosecutors probably will seek an appeal.
As noted before here, I have been starting to conceptualize Blakely in terms of an offense/offender distinction, and thus I was pleased to see that a New Jersey appellate court in NJ v. Abdullah, 2004 WL 2281236 (N.J. Super. A.D. Oct. 12, 2004), relied on an offense/offender distinction when applying Blakely (details here). The Abdullah court's discussion of this distinction is a bit truncated, and I have now had a chance to write up my views more formally. Here is the first part of an article, entitled "Conceptualizing Blakely," that I am working on for the next issue of the Federal Sentencing Reporter:
The Blakely rule, its underlying principle, and its key limit could be better understood and appreciated if the Supreme Court linked its rulings to the constitutional text it purports to be applying. Notably, the jury right at issue in the Blakely line of cases actually appears twice in the U.S. Constitution. Section 2 of Article III provides: “The trial of all crimes, except in cases of impeachment, shall be by jury.” And the Sixth Amendment, in pertinent part, provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” In addition to highlighting the favored status of the jury trial right, the language of these provisions helps to chart the proper metes and bounds of the right itself.
The Constitution frames the jury trial right in terms of the trial of “crimes,” which are the basis for a “prosecution” of “the accused.” This language connotes that the jury trial right attaches to all offense conduct for which the state seeks to impose criminal punishment, but also connotes that the jury trial right does not attach to any offender characteristics which the state may deem relevant to criminal punishment. That is, all facts relating to offense conduct which the law expressly makes the basis for criminal punishment are subject to the jury trial right; such facts are in effect fundamental parts of those “crimes” which the state wishes to be able to allege against “the accused” in a “criminal prosecution.” Put simply, the state accuses and prosecutes persons for what they do, not for who they are; consequently the jury trial right concerns offense conduct while having no application to offender characteristics.
Stated another way, the jury trial right ensures that a defendant can always demand that a jury determine whether the defendant in fact did whatever offense conduct the state seeks to punish. But once offense conduct has been properly established — either through a jury trial or a defendant’s admission — a judge may properly consider whether and to what extent offender characteristics may justify more or less punishment in response to the properly established offense conduct. And, critically, a state may structure through statutes or guidelines how a judge considers offender characteristics without implicating the jury right.
In short, there is an essential offense/offender distinction at the heart of the jury trial right. In addition to being faithful to the text of the Constitution, the offense/offender distinction resonates with the distinctive institutional competencies of juries and judges in the context of sentencing determinations. Juries can reasonably be expected to determine offense conduct at trial; the state should have to prove to a jury beyond a reasonable doubt exactly what “the accused” did. But judges are generally better positioned to consider offender characteristics at sentencing; the state should be allowed to offer (potentially prejudicial) information concerning an offender’s life and circumstances directly to a judge to assist in determining an appropriate punishment. (Of course, the state is certainly permitted to provide for jury consideration of offender characteristics, but the Constitution does not demand as much.)
October 13, 2004 in Blakely Commentary and News, Booker and Fanfan Commentary, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (21) | TrackBack
Roper reading redux
The newspapers bring more stories on Roper v. Simmons, the case to be argued today in the Supreme Court exploring whether it is still constitutional to execute persons who committed capital crimes before turning eighteen. This morning you can find thoughtful coverage in articles from The Washington Post, The New York Sun, and two pieces from the Christian Science Monitor here and here. (Other stories and materials on the case were previously assembled here and here.)
Additional background on the Roper case can be found from the folks at the SCOTUS Blog here. That post reminds me that the Roper case, in addition to addressing an important symbolic aspect of how the US administers capital punishment, could prompt interesting (and perhaps contentious) opinions addressing whether and how to give evolving meaning to the Eighth Amendment's prohibition on cruel and unusual punishments.
In addition, this USA Today op-ed by Jimmy Carter on Roper v. Simmons spotlights the question of whether the Supreme Court's interpretation of the Eighth Amendment ought to be influenced by international human rights norms. (Recall that the role of international law was hotly debated in the Justices' opinions in Atkins v. Virginia, when the court reconsidered the constitutionality of executing persons with mental retardation.)
October 12, 2004
The Minnesota courts officially address Blakely
It is a big Blakely day in the states. Following the important decisions out of New Jersey (noted here), we also today get noteworthy rulings from Minnesota.
For quite some time, the Minnesota Courts of Appeals have been just remanding cases raising Blakely issues, as noted here (and see also today's State v. Conley, 2004 WL 2283421, (Minn. App. Oct. 12, 2004). Of course, these decision have been against the backdrop of the reports by the Minnesota Sentencing Guidelines Commission (available here and here) which concede that there are Blakely-problematic elements of state law.
Today, officially, the Minnesota Court of Appeals holds, in two published decisions, that Blakely invalidates upward departures and sentences under Minnesota's "career offender" statute. The decisions in Minnesota v. Conger, A03-1771 (Minn. App. Oct. 12, 2004), and Minnesota v. Mitchell, A03-110 (Minn. App. Oct. 12, 2004), are both quite interesting reads, especially because the state apparently has been arguing that Blakely is inapplicable in Minnesota because the "Minnesota sentencing guidelines are not mandatory but merely 'advisory to the district court.'" In Conger, the court reject this claim in the following passage:
[E]ven though the sentencing guidelines are advisory to the district court, and a person convicted of a felony does not have a right to receive the presumptive, fixed sentence established by the Sentencing Guidelines Commission for that person's offense, a district court that does not impose the presumptive, fixed sentence is required to make findings of fact that support the court's reasons for departing from the presumptive sentence. This means that under the Minnesota sentencing procedures, the applicable presumptive, fixed sentence established by the Sentencing Guidelines Commission is the maximum sentence that a judge may impose without finding facts that support a departure, and a judge who imposes an upward durational departure must do so in a manner that complies with the Sixth Amendment to the United States Constitution as explained in Blakely.
Still more on Prop. 66
Especially since lately coming down with a touch of Blakely fatigue, I am now having fun tracking the debate over California's Proposition 66, the ballot measure which seeks to amend the state's harsh Three Strikes Law by providing that the third strike would have to be a serious or violent felony to trigger a sentence of 25 years to life. (Prior major posts about Prop. 66 and Three Strikes in California can be found here and here.)
There are two interesting additions to this debate in today's California papers: this informative SF Chronicle article on Prop. 66, and this SJ Mercury News editorial encouraging readers to "Vote Yes To Fix Three Strikes."
The Blakely earthquake hits New Jersey
I just received from a friend in the Garden State what he says "are the first two mid-level appellate opinions addressing Blakely" in New Jersey. Both opinions can be downloaded below.
As the friend explains:
Both cases involve a murder conviction, and (non-capital) murder is sui generis under NJ law, providing for an automatic sentence of at least 30 years (or b/w 30 years to life). But as to non-murder counts, one of the two opinions appears to reject the Blakely challenge to a separate count of conviction in dictum, but concludes that any error is harmless because the other aggravators the judge found involved prior convictions which do not fall within Blakely's/Apprendi's holding.
I have only had a chance to give both cases a very quick read, and each turns in part on a particular conception and articulation of New Jersey's statutory sentencing laws. But I was especially excited to see the New Jersey appellate court in NJ v. Abdullah, A-1982-02T4 (N.J. App. Oct. 12, 2004), articulating and relying heavily upon an offense/offender distinction in the application of Blakely. (Note that I (poorly) discuss this sort of distinction here, and I plan to post soon a draft article which better explains why I believe an offense/offender distinction provides a sound and appropriate way to conceptualize (and narrow) the import and impact of Blakely.)
Download nj_v. Abdullah.pdf
Download nj_v. King.pdf
UPDATE: The lawyer who sent me these NJ cases suggested that I note that there is another significant Blakely case, NJ v. Natale, pending unheard in the appellate division, and that in Natale the defendant has moved for direct certification to the NJ Supreme Court. I am able to post below an "amicus" letter supporting the defendant's motion for direct certification in Natale, which stresses that Natale presents the New Jersey Blakely issue "cleanly" because there are no prior conviction issues involved.
More insights on the death penalty for juvenile offenders
While the Blakely world remains relatively calm as everyone awaits the Supreme Court's decision in Booker and Fanfan, the nation's newspapers have turned their focus toward tomorrow's High Court argument in Roper v. Simmons which will address the continued constitutionality of executing offenders who committed their crimes as a juvenile. This article provides basic background on the case, while this piece notes the impact that research on the number of juvenile death sentences by Columbia law professor Jeffery Fagan could have on the case.
Relatedly, the Dallas Morning News has interesting articles here and here which continue the paper's first-rate coverage of a range of issue relating to juvenile offenders and the administration of capital punishment. Providing a medical angle on this issues, this interesing op-ed is penned by a child psychiatrist and urges the abolition of the death penalty for juvenile offenders.
UPDATE: As he does so well, Howard Bashman at How Appealing has helpfully collected here additional newpaper coverage of the Roper case. He also continues to tantilize with a promise that later tonight he "will have a detailed post highlighting some of the particularly interesting facets of this case."
October 11, 2004
More on Blakely in Indiana
I previously noted here that oral arguments on a set of Blakely cases are already scheduled in the Washington Supreme Court for November 9th and 10th. I have now learned from a great friend of the blog that the Indiana Supreme Court is also scheduled on the morning of November 10th to have combined oral argument in two Blakely cases, Heath v. State and Smylie v. State. Helpfully, interested persons can listen to these arguments live via webcast or through the Indiana Supreme Court's online archive here. (I find it fascinating (and sad) that a state supreme court webcasts its arguments live, while a week later we still await just a written transcript from the Booker and Fanfan arguments to appear here.)
For background on the Smylie case, I would highly recommend the exegesis provided here by attorney Michael Ausbrook. More generally, Michael's relatively new blog INCOURTS is providing a lot of effective Indiana-specific Blakely coverage. And for some general background on Indiana's "presumptive" sentencing scheme, Michael Ausbrook recommends this article by Mike Limrick in a periodical put out by the Indiana State Bar Association (which comes courtesy of Marcia Oddi's great Indiana Law Blog).
Monday morning (sentencing) quarterback
At this national moment of sentencing second thoughts, the writers of newspaper editorials are sharing their views on where sentencing law and policy should be heading. Here's an editorial from the Baltimore Sun urging the Supreme Court to affirm in Booker and Fanfan, and here an editorial from the The Republican in Massachusetts urging the Supreme Court in Roper v. Simmons to rule it is unconstitutional to execute an offender who committed his crime as a juvenile. (Background on the Roper case can be found here.)
And, in other news about sentencing second thoughts, here an interesting article about the campaign over Proposition 66 which would amend California's harsh 3-strikes law. (Background on Prop. 66 can be found here and here.)
More Ohio Blakely reversals
A set of cases last week revealed again that Ohio is a state worth watching for interesting and diverse Blakely rulings (for prior evidence, see discussion of Ohio developments here and here and here).
In State v. Moore, 2004 WL 2252044 (Ohio App. 8 Dist. Oct. 07, 2004), State v. Washatka, 2004 WL 2252048 (Ohio App. 8 Dist. Oct. 07, 2004), and State v. Mason, 2004 WL 2252051 (Ohio App. 8 Dist. Oct 07, 2004), the Court of Appeals of Ohio for the Eighth District identifies Blakely problems in a variety of legal and factual settings and responds by vacating defendants' sentences and ordering resentencings.
October 10, 2004
Good to be home, with more perspectives
I am back home on East Coast time, and still giddy from experiencing the wonderful Stanford Roundtable conference organized by Professor Robert Weisberg. The plans are to have some written product from the whole conference in the near future (perhaps for the Federal Sentencing Reporter and/or the Ohio State Journal of Criminal Law), so that those not able to attend can get a sense of the Blakely ground so effectively covered.
And the long plane ride home gave me a chance to think through more fully the offense/offender distinction that I believe provides a sound and appropriate way to conceptualize (and narrow) the import and impact of Blakely. I hope to have a chance to write up more fully (and more clearly) the ideas I started to set out here last night.
One very interesting insight I returned home with concerns the fact that it seems most legal academics writing about sentencing are former federal prosecutors or at least spent some time in the U.S. Department of Justice. At the Stanford conference, I discovered that Professors Alschuler, Bibas, Bowman, Chanenson, Klein, Little, Miller, Richman, Stith, and Wright all had either been federal prosecutors or worked for DOJ. Though these professors' views were certainly not uniform, they all were clearly influenced by their prior professional service. And confirming that biographies influence perspective, in this audio piece from NPR Eric Vos, an assistant federal defender in Pennsylvania, reveals how at least one defense attorney views the operation of the existing federal sentencing guidelines.
Tennessee Blakely trouble
I am heading home from California today and have been speculating about how many states with Blakely problems I will be flying over on the way back to Ohio. I know I won't be going over Tennessee, but the case of State v. Eddings, 2004 Tenn. Crim. App. LEXIS 858 (Tenn. Crim. App. Oct. 8, 2004), confirms that it is a state struggling with Blakely issues.
In Eddings, the court usefully explains in short form how Tennessee sentencing law works and why the case raises a Blakely problem:
In calculating the sentence for a Class B felony conviction, the presumptive sentence is the statutory minimum of eight years for a Range I offender if there are no enhancement or mitigating factors. See Tenn. Code Ann. § 40-35-210(c). If there are enhancement but no mitigative factors, the trial court may set the sentence above the minimum, but still within the range. Tenn. Code Ann. § 40-35-210(d). A sentence involving both enhancement and mitigating factors requires an assignment of relative weight for the enhancement factors as a means of increasing the sentence. Tenn. Code Ann. § 40-35-210(e). The sentence must then be reduced within the range by any weight assigned to the mitigating factors present. Tenn. Code Ann. § 40-35-210(e).
In the case under submission, in arriving at a mid-range sentence of ten years the trial court applied the following five enhancement factors and no mitigating factors:
(6) the Defendant treated or allowed a victim to be treated with exceptional cruelty during the commission of the offense;
(9) the Defendant has a previous history of unwillingness to comply with the conditions of a sentence involving release into the community;
(10) the Defendant possessed or employed a firearm during the commission of the offense;
(11) the Defendant had no hesitation about committing a crime when the risk to human life was high; and
(17) the crime was committed under circumstances under which the potential for bodily injury to a victim was great....
None of the enhancement factors used by the trial court to enhance the Defendant's sentence were submitted to a jury or admitted by the Defendant. Therefore, the rule in Blakely precludes application of any of these factors. Because there are no enhancement factors that were proved to a jury beyond a reasonable doubt or admitted by the Defendant, the sentence must be modified to eight years, the presumptive minimum.
Interestingly, Judge David Hayes dissents in part, asserting that the Blakely issue was waived by the defendant, and that the standards for plain error review were not satisfied on the facts so as to still justify a reversal.
UPDATE: Some additional major Tennessee Blakely case from last week are now also on-line. In State v. Benson, 2004 Tenn. Crim. App. LEXIS 868 (Tenn. Crim. App. Oct. 8, 2004), the court thoughtfully examines a range of Blakely issues and ultimately finds that though "the trial court improperly relied on certain enhancement factors in light of Blakely, we conclude that the record supports a sentence of twenty years." But in State v. Northcutt, 2004 Tenn. Crim. App. LEXIS 861 (Tenn. Crim. App. Oct. 7, 2004), the court reverses a sentence after finding that the "rule of law articulated by the United States Supreme Court in Blakely" precluded the application of various enhancement factors because they were not "submitted to a jury or admitted by the defendant."
Stories on the death penalty for juvenile offenders
If you are sick of Blakely, you can look forward to coming coverage of the quite distinct issue to be argued to the Supreme Court this week: the continued constitutionality of the execution of offenders who commited their crimes while juveniles. I have done posts on Roper v. Simmons, the case to be argued Wednesday, October 13 before the Justices , here and here. Newspapers are starting to run stories on Roper and issues related both to the death penalty and juvenile justice, as evidenced by a piece here and another piece here.
Late-night wrap up
Day two of the Stanford Roundtable conference provided still more wonderful insights, with great panels covering Blakely in the states, the impact on plea bargaining and other backward-looking and forward-looking litigation issues, and then a rousing finale with "idealistic reflections on the future of sentencing reform." As is now the norm in these dialogues, there was a lot of (often pessimistic) forecasting of what Blakely will come to mean, especially as legislatures react to the new constitutional rights and rules that Blakely has ushered in.
I have learned so much more about Blakely from the dialogues at this amazing Stanford event (beautifully put together by Professor Bob Weisberg). I gained many new and important insights, and today's panels especially highlighted the risks and challenges that the Blakely decision poses for the future of modern sentencing reform efforts.
But I continue to believe that Blakely stands for the fundamental — and fundamentally sound — basic principle that, in our constitutional system with its commitment to adversarial justice and jury rights, any factual finding (but not any legal conclusion) which concerns any criminal offenses (but not the offender) that by law defines punishment levels must be proven to a jury beyond a reasonable doubt (or admitted by the defendant). In other words, I believe Blakely articulates the simple and sound principle that any factual findings concerning any criminal offense which by law defines punishment levels is exactly what is a "Crime" in Article III, Section 2 of the Constitution (as well as the Sixth Amendment) to which a jury right attaches.