October 23, 2004
UPDATE: With another assist from Howard Bashman at How Appealing, here is another noteworthy article on Three Strikes and Prop. 66 from the LA Times. The article's discussion of the uncertainty and debate over ambiguous retroactivity language in the proposition is especially interesting.
October 22, 2004
Sing, sing a song
Though it has taken too long to highlight this great post, here from Milbarge at Begging the Question, I am so very glad I finally have a chance to spotlight the wonderful Blakely song parody (which riffs on my riff here). Though Jeremy Blachman may still reign as the blogging king of song parodies, Milbarge definitely gets extra points for both the subject matter and especially the lines:
Breyer cries over all the work he did.
O'Connor says, "Pandora, close the lid!"
Of course, doing song parodies about sentencing puts one in very fine company. A quick jaunt on-line to 9 Federal Sentencing Reporter 338 (1997), will lead one to "Ode to the Guidelines," this wonderful ditty created by my former boss, Second Circuit Judge Jon O. Newman, to be sung to the tune of "School Days:"
Guidelines, guidelines not so very wide lines.
Enter a plea to a minor crime; you'll be amazed at the extra time.
And if a departure is what you seek, your 30-year sentence will drop by a week.
Guidelines, guidelines, narrow side-by-side lines.
Relevant conduct is all that counts; DEA agents will set the amounts.
And if any jury should set you free, the guidelines will treat you as if you're guil-tee!
Guidelines, guidelines, those take-you-for-a-ride lines.
Sentences used to require minds and hearts; now all that you need are those guideline charts.
Amazingly, in the wake of Blakely, this tune is looking a bit dated.
Light weekend reading
Though I have weekend plans to finish my draft article on Conceptualizing Blakely, and to watch the start of what I hope will be a great World Series, and to do a bit of non-Blakely blogging at Crescat Sententia, I am also talking home a bit of light reading this weekend.
I just received a copy of a brief filed on behalf of amicus curiae Association of Criminal Defense Lawyers of New Jersey And the Office of the Public Defender in a big Blakely case from New Jersey, and to a Blakely-addict like me it looks like a fun read. Here it is for downloading for any other Blakely gluttons out there:
Arizona effort to keep Blakely in check
Continuing the trend of important state Blakely cases (see others here and here and here), an intermediate appellate court in Arizona issued an interesting ruling ysterday in State v. Miranda-Cabrera, 2004 WL 2359851 (Ariz.App. Div. 1, Oct. 21, 2004). The ruling in Miranda-Cabrera provides yet another example of a lower court finding various means and methods to keep the impact of Blakely somewhat controlled.
The defendant in Miranda-Cabrera argued that "the trial court violated Blakely in two different respects. First, it violated his Blakely rights by subjecting him to the enhanced sentencing range required by the dangerous crimes against children act without specific jury findings justifying that exposure, and second in finding certain aggravating factors in sentencing him to a mitigated sentence within that enhanced range." In a thoughtful and thorough (and contestable) opinion, the Arizona court found neither of these claims availing.
On the first issue, the court asserted that the facts admitted by the defendant in the course of his trial testimony "establish that Miranda-Cabrera's conduct was sufficiently directed at [the victim] to satisfy the 'targeting' requirement for this offense to constitute a dangerous crime against children." The court then explained that "[e]ven assuming that the facts admitted by the defendant in his testimony at trial are not sufficient to be facts 'admitted by the defendant' for sentencing purposes, it was harmless error in this circumstance for the judge to enhance Miranda-Cabrera's range of sentence without a separate and specific finding."
On the second issue, the court concluded it need not remand for resentencing merely because Miranda-Cabrera's sentence might have shorter if the trial court had not found certain aggravating factors to set off against mitigating factors when imposing sentence. The court asserted that Blakely was not violated because "the court's consideration of the sentencing factors did not result in the imposition of a sentence above that which the judge was entitled to impose based on 'the facts reflected in the jury verdict or admitted by the defendant.'" The court stressed that Blakely indicates that "the Sixth Amendment does not remove all discretion from the judge in sentencing" and that "indeterminate sentencing does not infringe on the province of the jury" in order to conclude that "whether the sentencing scheme is determinate or indeterminate, once the jury has found the facts necessary to impose a sentence within a statutory range, a judge may consider any additional sentencing factors in imposing a lesser sentence than the statute authorizes." Consequently, the court affirmed the defendant's sentence:
Because Miranda-Cabrera received a sentence in this case that was less than the sentence the judge could have imposed based solely on the facts found by the jury and admitted by Miranda-Cabrera, the trial court did not violate Miranda-Cabrera's constitutional rights pursuant to Blakely by finding additional aggravating factors in imposing a mitigated sentence.
A window on waiver
I have heard interesting and diverse anecdotal stories about when and how defendants are expressly waiving their Blakely rights, and I get the sense that Blakely waivers are quite common and quite varied in courts nationwide. A decision earlier this week from Maine (which just came on-line) provides a window on waiver in federal district court. Though the ruling of US District Judge John Woodcock in US v. Roper, 2004 U.S. Dist. LEXIS 20957 (D. Maine Oct. 19, 2004), does not break significant jurisprudential ground, it does reveal some of the new waiver dynamics that have arisen in the wake of Blakely.
October 21, 2004
Double whammy through double jeopardy
Today in US v. Kassab, CR 03-407-RE (D. Or. Oct. 21, 2004), which can be downloaded below, US District Judge James A. Redden rejected a government's motion to empanel a sentencing jury. In Kassab, the defendant pled guilty before Blakely was decided to one count of possession and distribution of pseudoephedrine. While sentencing was pending, the Ninth Circuit decided Blakely was applicable to the federal guidelines in Ameline, and the government in turn filed "a request for a sentencing jury in this case to determine the amount of pseudoephedrine for which defendant should be held responsible at sentencing."
Relying heavily on the Ninth Circuit's post-Ameline decision in US v. Patterson, 381 F.3d 859 (9th Cir. August 20, 2004), Judge Redden refused the government's request:
In this case, in order to impanel a sentencing jury on the issue of amount of pseudoephedrine, this court necessarily would have to vacate, over defendant's objections, his plea to an unspecified amount of pseudoephedrine. Under Patterson, this court is not permitted to vacate the plea in these circumstances. Further, based on the Ninth Circuit's rationale in Patterson, this court concludes that because initial jeopardy attached when the court accepted defendant's guilty plea to an unspecified amount of substance, double jeopardy would attach to a subsequent jury determination of the amount of substance involved, in violation of defendant's rights under the Double Jeopardy Clause of the Fifth Amendment. Defendant's guilty plea established only that he admitted to possession and distribution of an unspecified amount of pseudoephedrine, and that is the basis upon which he will be sentenced.
In sum, when this court accepted defendant's plea to an unspecified amount of pseudoephedrine, the government lost the opportunity to prove to a sentencing jury that defendant was responsible for a specified amount of the substance. This is a situation like Patterson where intervening changes in the law have resulted in the government losing, through no fault of its own, the opportunity to argue and prove the amount of substance at issue. Even though this arguably could result in a windfall to the defendant and prejudice to the government, the Fifth Amendment does not permit the defendant to be tried twice for the same offense.
More Blakely news from Colorado
As detailed here and here, Colorado has been struggling with Blakely, and the Colorado Supreme Court already has plans to examine whether Colorado's sentencing scheme can survive Blakely in the case of Lopez v. Colorado, No. 04SC150. Adding to the story today is a decision by the Colorado Court of Appeals in Colorado v. Moon, 03CA1107 (Colo. App. Oct. 21, 2004).
Moon includes a thoughtful exploration of similarities and differences between the Washington sentence scheme at issue in Blakely and Colorado's sentencing structures. And the analysis culminates with the conclusion that Blakely impacts at least portions of Colorado's sentencing system:
[W]e conclude that the statutory maximum for purposes of applying Apprendi and Blakely is the maximum in the presumptive range. We further conclude that a sentence in the aggravated range under § 181.3401(6) violates the Sixth Amendment right to trial by jury, unless the facts found by the trial court to support the sentence, including the ultimate finding that these facts are extraordinary: (1) are reflected in the jury’s verdict; (2) were admitted by the defendant for purposes of sentencing; or (3) involve prior criminality, to the extent permitted by Apprendi.
As I noted here, the issue of Blakely's applicability to judicial imposition of consecutive sentences is a hugely important question that the Supreme Court will likely need to address before long. This is an especially important issue because even states that do not have obvious Blakely issues in its basic sentencing procedures may have rules about the imposition of consecutive sentences which implicate Blakely.
Evidence of these realities comes from a New York ruling last week, which just appeared on-line. In NY v. Murray, 2004 NY Slip Op 24388; 2004 N.Y. Misc. LEXIS 1776 (Oct. 15, 2004), the defendant filed a pro se motion challenging the imposition of consecutive sentences because it was based on "a factual finding that 'defendant formed a new intention. . . to shoot and kill, [which] is not reflected or supported by the facts found in the jury's verdict' (defendant's affidavit)." The court in Murray articulated the defendant's claim and the claim's rejection this way:
Defendant also contends that the determination that the new intent and the act of shooting were an "afterthought" which, under New York law, warrants a consecutive sentence, must now be submitted to the jury by virtue of Apprendi v. New Jersey, 530 U.S. 466 (2000). In other words, defendant contends that New York's statutory law permitting consecutive sentences for two or more offenses based on factors arguably not determined by a jury violates defendant's Sixth Amendment right to a trial by jury.
No New York court appears to have considered this question. Notably, it was not raised on defendant's direct appeal. In Apprendi v. New Jersey, supra, at 474, the Supreme Court noted that, in deciding the constitutional question of whether a sentencing court could exceed the statutorily authorized maximum sentence for a particular crime based upon a judicial determination of racial bias, it was not addressing the question of whether the sentencing court could have achieved the same result by imposing consecutive sentences for the several counts on which that defendant was convicted. Several courts have considered the question raised here. The Supreme Court of Illinois held, "we find that Apprendi concerns are not implicated by consecutive sentencing." People v. Wagener, 752 N.E.2d 430 (2001). See also People v. Vaughn, 2004 WL 2223299 (Cal. App. 2 Dist. 2004); Hood v. McAdory, 2004 WL 251830 (N.D. Ill. 2004). Likewise, this court finds no basis to extend Apprendi to prohibit consecutive sentences imposed for separate counts of an indictment where no single sentence exceeds the statutorily authorized maximum sentence. Some would argue that the Supreme Court's decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), now requires that the determination as to whether a certain statutory basis for consecutive sentences [PL 70.25 (2)] has been established must be submitted to the jury because it is a factual question. This court considers the question of whether consecutive sentences are authorized to be a legal question based on the jury's verdicts. Until the Supreme Court, the New York Court of Appeals or the Appellate Division holds otherwise, this court will not invalidate New York's statutory scheme that makes that determination a judicial one.
Dissention in the Michigan ranks?
Reaching out to address the Blakely issue quickly, the Michigan Supreme Court in July in People v. Claypool (detailed here) dropped a footnote asserting that Michigan's guideline scheme operates in a manner that avoids Blakely problems. That decision was thought questionable at the time, and earlier this week in People v. Holtschlag, 2004 Mich. App. LEXIS 2751 (Mich. App. Oct. 19, 2004), a Michigan intermediate appellate court dropped its own interesting footnote questioning the conclusion of the Claypool court:
We note that MCL 777.36(2)(a) appears on its face to be in opposition to the recent United States Supreme Court decision of Blakely v Washington, 124 S. Ct. 2531 (2004), as the statute explicitly allows a sentencing court to consider factors not before the jury. However, a majority of the Michigan Supreme Court recently decided that Blakely does not apply to Michigan's indeterminate sentencing guidelines in which the maximum sentence is set by law. People v Claypool, 470 Mich. 715, 730 n 14; 684 N.W.2d 278 (2004) (Justices Cavanagh, Weaver and Young concurred with Justices Taylor and Markman, writing for the Court, that Blakely is inapplicable in Michigan).
October 20, 2004
Still more Blakely news from Indiana
Marcia J. Oddi of the The Indiana Law Blog reports that a state decision today, Krebs v. Indiana, No. 49A04-0310-CR-549 (Ind. Ct. App. Oct. 20, 2004), provides "the clearest statement to date" of Blakely's impact on Indiana sentencing law. Marcia provides the details in this post (scroll down to the third case), and she also reminded me that in three weeks the Indiana Supreme Court will be hearing its Blakely cases (as detailed here).
More Blakely wisdom
Though the number of Blakely events has slowed down a bit of late, the are still many settings for obtaining additional Blakely wisdom. For example, next week the Practising Law Institute has arranged for a "Telephone Briefing," on October 28, 2004 from 1:00-2:00 EST, to examine "The Future of the Federal Sentencing Guidelines After Blakely."
The PLI's Telephone Briefing is to include US Sentencing Commissioner Michael E. Horowitz and Professor Leonard Orland exploring the impact of Blakely on the sentencing guidelines. Registration details for the event can be accessed here, and details for accessing a live audio webcast are here. At both links you will see that PLI plans to cover a wide array of important Blakely topics.
Seeking news on "alternative sentencing"
Last month, in the wake of the Fourth Circuit's ruling in Hammoud which recommended that district judges "announce, at the time of sentencing, a sentence pursuant to 18 U.S.C.A. § 3553(a), treating the guidelines as advisory only," I wondered here whether anyone is keeping track of alternative sentences announced in the Fourth Circuit and elsewhere after Blakely. I continue to hope that somebody is tracking the alternative sentencing story — perchance the US Sentencing Commission — because data on how judges are sentencing when "treating the guidelines as advisory only" will likely be very valuable no matter what the Supreme Court does in Booker and Fanfan.
I am also wondering whether the Fourth Circuit's recommendation is actually being followed. Recall that US District Joseph Goodwin of the Southern District of West Virginia thoughtfully explained here why he considered alternative sentencing inappropriate, and that Professor Ronald Wright reported back in August here that most district judges in the Fourth Circuit had not been announcing alternative sentences.
I am now thinking about these matters because an unpublished decision by the Fourth Circuit yesterday suggests that the circuit court itself is not a true believer in alternative sentencing. In US v. Johnson, 2004 U.S. App. LEXIS 21707 (4th Cir.Oct. 19, 2004), the court dropped a footnote in which, after summarily rejecting a Blakely claim by citing Hammoud, the court said it did "not deem it necessary to remand the case so that the district court may announce an alternative sentence."
I continue to suspect that alternative sentencing works better in theory than in practice, but I obviously have no direct "in the courtroom" experience to support this supposition. I hope others working in the Fourth Circuit or elsewhere might use the comments to share any "in the courtroom" experiences with alternative sentencing.
Covering Blakely in the states
As suggested here, the number of state rulings on Blakely continues to grow. In just two days this week, there has already been nearly a dozen Blakely decisions, and the pace of the rulings now entails that I cannot hope to provide comprehensive coverage of all the state court action. (Amazingly, the First District Appellate Project seems to be keeping up with all the Blakely court action in California here.)
I will try to continue to spotlight state cases of particular importance or interest, and I encourage readers to help me find this cases. I have recently found two such noteworthy state cases decided late last week: State ex rel. Smith v. Conn, 2004 Ariz. App. LEXIS 149 (Ariz. App. Oct. 14, 2004) and State v. White, 2004 Tenn. Crim. App. LEXIS 901 (Tenn. Crim. App. Oct. 15, 2004).
In Conn, the state prevailed on a challenge to a trial court's order denying the state's motion to add an allegation of aggravating factors to the indictment and request for jury trial. The court explained:
We disagree with the trial court's conclusion that A.R.S. § 13-702(B) is invalid after Blakely. That A.R.S. § 13-702(B) requires a trial judge to find aggravating factors does not mean that, post-Blakely, juries cannot do so without a legislative change to the statute.
There is nothing in the plain language of A.R.S. § 13-702(B) that prohibits a trial court from submitting aggravating factors to the jury. Moreover, nothing in A.R.S. § 13-702(B) prevents a jury from finding aggravating factors. Once a jury finds an aggravating factor, Blakely is satisfied, and A.R.S. § 13-702(B) allows a trial judge to impose an aggravated sentence after consideration of the factors enumerated in A.R.S. § 13-702.
In White, the court addressed a range of Blakely issues under Tennessee law (which itself triggered a partial dissent). But most intriguing were these comments about Blakely and restitution:
Our final inquiry is whether any order of restitution in this case is subject to the dictates of the recent United States Supreme Court's decision in Blakely .... The Blakely Court did not speak in narrow terms that targeted merely the length of an accused's sentence; rather, the Court spoke in broader terms of the power to punish....
Existing Tennessee case law expressly recognizes, "The purpose of restitution is not only to compensate the victim but also to punish and rehabilitate the guilty." Restitution has also been described as "an important tool in the punishment of criminals. " More particularly, restitution has been regarded as "a part of the sentencing scheme and in the nature of a penalty for crime," which is not affected by the victim releasing the offender from civil liability.
Tennessee's view of restitution ostensibly conflicts with the prevailing view in two federal circuits, ... but it is consistent with the approach taken in two other federal circuits.... Regardless whether restitution qualifies as punishment, however, we believe that a judicial finding of an amount of restitution does not run afoul of the Due Process or Sixth Amendment guarantees as interpreted in Blakely. Blakely and its progenitor, Apprendi v. New Jersey, 530 U.S. 466 (2000), specifically targeted increased penalties for crimes beyond the prescribed statutory maximum without submission to a jury or admission by a defendant. Neither Code section 40-20-116 nor section 40-35-304 embraces a "statutory maximum" that could be increased by a given finding; that is to say, neither statute specifies a maximum amount of restitution that may be ordered. Accordingly, nothing in Blakely appears to reach our restitution scheme or the particular restitution order entered in this case.
Spanning the sentencing blogsphere
Once again, there is a lot of interesting reading provided by fellow bloggers on a range of sentencing topics: Over at the ASC Blog, this extended post covers an array of important issues concerning the administration of capital punishment, and relatedly Ken Lammers has assembled a number of interesting links here concerning the application of the death penalty to juvenile offenders.
Meanwhile, Crime & Federalism is musing here about Proposition 66, the ballot initiative to amend California's Three Strikes Law. Those interested in the topic can also review my previous coverage of Prop. 66 here and here and here.
In addition, I was very pleased to see Jason Hernandez back on the Blakely beat today over at his Blakely Blog. In this post, Jason flags a complicated Blakely issue regarding consecutive sentences in New York, and the post highlights that concurrent/consecutive sentencing questions may be tying up courts for quite some time in the wake of Blakely.
Finally, from the sports desk, I just have to note that, whether my team wins or loses, few events are more exciting or historic than a Yanks-BoSox Game 7 in the House that Ruth Built.
October 19, 2004
Minnesota working on offense/offender idea
As noted here, I have been starting to conceptualize Blakely in terms of an offense/offender distinction (and I hope to be able to share a draft of an article to this effect in this space real soon). And, interestingly, we have seen (conflicting) intermediate appellate court decisions from New Jersey and Oregon discussing the idea that Blakely may only apply to "offense" facts and not to "offender" facts.
In a fascinating decision today, State v. Hanf, 2004 WL 2340246 (Minn. App. Oct. 19, 2004), a Minnesota intermediate appellate court hangs its hat on an offense/offender distinction, though does so through a heavy reliance on the continued validity of Williams v. New York. Here are some very lengthy highlights (citations omitted):
The Minnesota Sentencing Guidelines specify sentences that are presumptive with respect to both disposition and duration.... But caselaw has developed an essentially separate category of reasons for dispositional departures. Those reasons relate to the individual characteristics of the offender, and may not be used to support a durational departure, although some offense-related factors may be used to support dispositional departures....
In interpreting the Minnesota guidelines, our supreme court never attempted to limit dispositional departures to the largely offense-related departure factors listed in the guidelines. In the pre-guidelines indeterminate sentencing scheme, parole release decisions had come to be governed by a matrix system in which a risk of failure level was assigned to each inmate. This level was determined based on identified factors disclosed in "background information."...
Dispositional departures based on individual offender characteristics under the guidelines are like the traditional sentencing judgments made by judges in indeterminate sentencing schemes. The validity of those judicial judgments is conceded in Blakely....
Appellant would argue that he has a "right" to a stayed sentence because that is the presumptive disposition under the guidelines. But that argument is unconvincing. First, the presumptive disposition is determined in large degree by the defendant's criminal history score. As discussed above, that score is not in any way determined by the jury's verdict, despite the apparent assumption to the contrary in Blakely. Second, the "right" referred to in Blakely must arise from the jury's verdict, and that verdict historically has never determined sentence dispositions, at least since courts acquired the authority to stay sentences. Third, while the elements of the offense found by the jury help determine what is a "typical" offense warranting the presumptive duration, Minnesota courts have not attempted to define what is a "typical" offender to serve as a baseline for the proper disposition of any type of offense.
In practice, because the dispositional decision is largely predictive, Minnesota defendants must convince the court that ... they can succeed on probation, whether or not that is the presumptive disposition. At least, defendants must convince the court they are not particularly unamenable to treatment in a probationary setting to avoid an upward dispositional departure. The traditional role of the jury has never extended to determining which offenders go to prison and which do not. Traditionally, courts and parole officials made "their respective sentencing and release decisions upon their own assessments of the offender's amenability to rehabilitation." Mistretta v. United States, 488 U.S. 361, 363 (1989). The court's power to impose probation, in particular, resulted in an increase in judicial discretion channeled by "careful study of the lives and personalities of convicted offenders," particularly in the form of reports by probation officers. Williams v. New York, 337 U.S. 241, 249 (1949).
The point is not, as the state argues, that these offender characteristics could not be assessed by juries. If the Sixth Amendment required juries to determine "amenability to probation," that function would have to be assigned to them. But because such decisions are, in essence and in Minnesota practice, the equivalent of indeterminate sentencing, which Blakely approves, the Sixth Amendment does not require it....
This tradition establishes that an offender's amenability or unamenability to probation is not a "fact," within the meaning of Apprendi, that increases the offender's penalty. A dispositional departure requiring an offender to go to prison is undoubtedly a greater penalty than probation. But an offender's unamenability to probation is a judgment reached after consideration of a series of facts. It is not a "fact necessary to constitute the crime," Apprendi, 530 U.S. at 500, but rather a strictly offender-related conclusion....
It could be argued that the requirement of departure reasons sufficiently distinguishes dispositional departures under the guidelines from indeterminate sentencing. But, although Blakely refers to the "facts supporting [the] finding" of deliberate cruelty that authorized the greater sentence in that case, 124 S.Ct. at 2537, it did not compare the degree of formality of fact-finding under the Washington Sentencing Guidelines with the fact-finding traditionally involved in indeterminate sentencing schemes that Blakely approved. We conclude that the determination of amenability or unamenability to probation is not the determinate, structured fact-finding that Blakely holds the jury must perform.
The Supreme Court has made a similar distinction with respect to the offender's criminal history, or recidivism, which it has termed "a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence." Almendarez-Torres v. United States, 523 U.S. 224, 243 (1998). The Court stated that, "to hold that the Constitution requires that recidivism be deemed an 'element' of petitioner's offense would mark an abrupt departure from a longstanding tradition" in which recidivism went to the punishment only. Id. at 244. The same could be said with even greater force concerning the offender characteristics that govern dispositional departures, which extend beyond the offender's criminal history score. To hold that the Sixth Amendment requires those personal characteristics to be found by a jury would be an even further departure from tradition than to treat recidivism as an "element." We do not believe that Blakely requires this result.
Shackled to a jurisprudence
As detailed here, the US Supreme Court yesterday granted cert. in Deck v. Missouri, 04-5293. In Deck, a capital defendant contends, according to this decision of the Supreme Court of Missouri, that "having to appear before the jury wearing leg irons and handcuffed to a belly chain" during the penalty phase of his capital trial "violated his rights to due process, equal protection, confrontation of the evidence, a fair and reliable sentencing and freedom from cruel and unusual punishment."
Though I am not an expert on defendant shackling jurisprudence, I know enough about death penalty litigation to conclude that the precise issue before the High Court in Deck probably arises in only a few dozen cases each year. Though obviously this issue is very important to Mr. Deck, the broader jurisprudential significance of Deck for capital sentencing law and policy is probably quite limited. But the cert. grant in Deck is another reminder of how much work the Supreme Court created for itself since it started seriously regulating capital sentencing procedures three decades ago after its landmark rulings in Furman and Gregg.
As I noted here, I see some jurisprudential parallels between the developing Apprendi/Blakely line of non-capital sentencing regulations and the Furman/Gregg line of capital sentencing regulations. I will not be surprised if it takes three decades and even longer to sort out all of the issues that Blakely raises. I thus wonder if the Justices are already feeling shackled by Blakely and all the jurisprudential work that lies ahead.
Judge Bataillon speaks on Blakely-ized indictments
Regular readers know that Nebraska US District Judge Joseph Bataillon has issued a number of important opinions in the post-Blakely world (as detailed in posts here and here). Now, in US v. Benitez-Hernandez, 8:04CR317 (D. Neb. Oct. 19, 2004), Judge Bataillon has entered a noteworthy order rejecting a defendant's motion to dismiss a Blakely-ized indictment "in its entirety or to strike the 'additional factual findings' pled in the indictment." Here are some highlights from an opinion that can be downloaded below:
This court has held that it will continue to sentence under the guidelines to the extent that factors increasing the "maximum," as it is defined in Blakely, are charged in the indictment and either admitted or submitted to a jury (or to the court if a jury is properly waived) under the standard of proof beyond a reasonable doubt. United States v. Terrell, No. 04-CR-24, 2004 WL 1661018 (D. Neb. July 22, 2004). The indictment herein is the result of the government’s attempted compliance with Blakely. The additional allegations, if found by a jury beyond a reasonable doubt, would support a guideline sentencing enhancement.
Defendant challenges the indictment, contending the "additional factual finding" set out in the indictment is not a crime and that his prosecution for conduct that does not proscribe any criminal statute violates his Fifth and Sixth Amendment right to notice of conduct constituting a criminal offense and right to be informed of the nature and cause of the accusation against him. He further asserts that the Fifth Amendment Grand Jury Clause permits indictment only for infamous crimes, contending that sentencing enhancements promulgated by the Sentencing Commission are not crimes. Last, he contends that this court lacks jurisdiction over charges that do not constitute federal crimes.
The court finds defendant’s contentions have no merit..... The court finds no defect in the indictment. The government may seek to enhance defendant’s sentence under the guidelines with proof beyond a reasonable doubt of the additional fact it alleges. That fact then becomes the functional equivalent of an element of the crime that carries the enhanced penalty. The court finds the indictment fairly apprises the defendant of the elements of the crime, as enhanced, and the nature of the charge against him. Because the guideline provisions have the force of law, conduct that increases a penalty under the guidelines, together with proof of other essential elements, comprises an enhanced crime. Although reference to a guideline section would be helpful and appropriate, courts and practitioners have sufficient familiarity with the guidelines to ascertain the statutory source of the alleged enhancing fact. See Fed. R. Crim. P. 7(c)(3) ("unless the defendant was misled and thereby prejudiced, neither an error in a citation nor a citation's omission is a ground to dismiss the indictment.").
Judge nullification (due to mandatory guidelines)?
In the Boston Globe yesterday was this interesting article discussing US District Judge Joseph L. Tauro's decision to use his power under Federal Rule 29 to acquit a lawyer charged with money laundering after the government had presented seven days of trial testimony linking the lawyer to ill-gotten monies. The formal legal basis for the acquittal, which cannot be appealed and is entirely unreviewable, seemed to be Judge Tauro's conclusion that there was insufficient evidence showing that the defendant knew he was receiving drug money. But I cannot help but speculate that Judge Tauro might have been more inclined to acquit because he thought an unduly severe sentence would be mandated by the federal sentencing guidelines if the defendant was convicted.
Students of capital sentencing know that an important historical justification for granting capital juries' sentencing discretion has been to avoid the risks of jury nullification. The concern is that, if a capital conviction mandates a death sentence, juries might be inclined to acquit a guilty but sympathetic defendant rather than condemn such a defendant to an automatic death. Such concerns about nullification in part prompted a legislative move to discretionary death sentencing in the 19th and 20th centuries, and also was integral to the Supreme Court's decision to declare mandatory death sentencing systems unconstitutional in the 1970s. Against this backdrop, I wonder whether some Rule 29 acquittals in the federal system may reflect a form of "judge nullification" — are federal judges perhaps sometimes more inclined to acquit a guilty but sympathetic defendant rather than condemn such a defendant to the severe mandatory sentences required under the federal guidelines?
Though I cannot nor should not question Judge Tauro's ruling without more direct information about the case, it was interesting to see a former federal prosecutor in the Globe article raising the notion that harsh federal guidelines could be prompting (inappropriate) Rule 29 acquittals:
Salem lawyer Jeanne Kempthorne, a former federal prosecutor, cited more than a dozen cases between 1996 and 2001 in which federal judges in Massachusetts acquitted defendants during trial. ''It is a system that invites abuse," she said. A judge may acquit a defendant simply because he doesn't like the federal sentencing guidelines, which call for long mandatory prison terms for certain crimes, Kempthorne said.
Though covering the basic legal issues effectively, the Globe article did not provide a lot of details about Judge Tauro's ruling. I am intrigued to know what sort of sentence the lawyer charged with money laundering was likely facing if he had been convicted in the trial before Judge Tauro.
UPDATE: Tom Lincoln discusses this case here and raises a number of excellent points about the realities of federal criminal practice. He also criticizes my speculation about Judge Tauro's decision being influenced by the harsh mandates of the guidelines, saying the point "would have been better left unsaid." Though I fully understand Tom's concerns that this post and speculation about Judge Tauro's decision could feed "prosecutorial claims of judicial abuse," my strong commitment to transparency (discussed here) entails that few if any points will be "left unsaid" on this blog.
But Tom's points help me realize that I ought to have at some point a post entitled "Prosecutor nullification (due to mandatory guidelines)?" This is because, while I am speculating, I am sure there are (many?) instances of a federal prosecutor not bringing or dismissing a charge primarily because he or she "thought an unduly severe sentence would be mandated by the federal sentencing guidelines if the defendant was convicted."
October 18, 2004
Living with severed federal guidelines
At the Oklahoma City sentencing conference I attended last week, WD Okla US Attorney Robert McCampbell made the terrific point that, because of the Ninth Circuit's decision in US v. Ameline, 376 F.3d 967 (9th Cir. 2004), the federal system is already gaining some experience dealing with Blakely-ized guidelines. I would be very eager to hear from folks working in the federal system in the Ninth Circuit about how life is under Ameline. Is the sky falling, or has the dust already settled in a reasonable way? Do lawyers (or school-children) throughout the Circuit sing the song, "Oh my darling, oh my darling, oh my darling Ameline"?
My sense from reading the caselaw is that the Ninth Circuit is figuring out ways to cope with Ameline. The latest evidence comes from US v. Smith, No. 03-30482 (9th Cir. Oct. 15, 2004) where the court was able to conclude that it faced "no Ameline problem in this case ... because the enhancement is supported by admitted facts and by the jury verdict, not by district court factual findings." I wonder whether this is a sign of the Ninth Circuit times, and that life with severed federal guidelines is manageable, or whether the world of federal sentencing in fact is terribly chaotic in the Ninth Circuit.
More inside-the-beltway Blakely negativity
The Washington Post has this editorial today which assails the Supreme Court's "reckless decision in Blakely v. Washington," calls the decision only "superficially attractive," and asserts that "[a]ny system that could realistically replace the guidelines is likely to be far worse from a civil liberties point of view."
As I have noted before, such pessimism about the post-Blakely future of federal sentencing seems endemic to the inside-the-beltway crowd. Though I will concede that I may suffer from an ivory-tower optimism, what troubles me most about such pessimism is (1) the failure to recognize or acknowledge how bad the current federal sentencing system is right now, and (2) the sharp criticism directed toward the Supreme Court because of fear Congress will be an irresponsible sentencing institution.
First, recall that the current system increased defendant Mohamad Hammoud's sentence from less than 5 years to 155 years based on based on a judge's preponderance finding of involvement in "terrorism" supported by the testimony of a single questionable informant who was, according to Judge Gregory, "described throughout the trial as untrustworthy, manipulative, a liar and an exaggerator" (basic details here). I am not sure how a system that raises Hammoud's sentence 150 years in this way could become "far worse from a civil liberties point of view" because the Supreme Court is to extend defendants more rights to contest these sorts of findings.
Of course, this "things will get worse" criticism started with the dissents of Justices O'Connor and Breyer in Blakely, and I have heard it echoed many times over the last four months. But I keep noticing that it is mostly prosecutors and former prosecutors who are making this assertion, while defense attorneys are essentially saying in response "we will take our chances." I have thus come to describe such criticism of Blakely, especially when made by prosecutors and former prosecutors, as "pernicious paternalism." Tellingly, Justice Scalia comically rebuffed such arguments in Blakely by stating that it was "hard to believe that the National Association of Criminal Defense Lawyers was somehow duped into arguing for the wrong side," and also by noting that the "only authority asking that defendants be protected from Apprendi is an article written not by a criminal defense lawyer but by a law professor and former prosecutor."
Second, it bears repeating that there is absolutely nothing inherent in Blakely which requires legislatures or sentencing commissions to make sentencing systems "far worse from a civil liberties point of view." (A post here sought to highlight the mistake of viewing the issue in Blakely as about all of sentencing reform.) Though I am, like others, concerned that Congress will react rashly to the ruling in Booker and Fanfan, that is a reason to criticize Congress not the High Court.
Congress reacted negatively to Miranda which gave defendants more rights against the police and states reacted negatively to Furman which gave defendants more rights in the administration of the death penalty, and many other landmark decisions of criminal procedure could be questioned if our standard was "will legislatures be happy and react well to a decision extending rights to criminal defendants." But that is why the Supreme Court's job is simply to interpret the Constitution, not to try to guess whether the reactions of other branches and institutions will be sound or suspect.
Indeed, we are in this big Blakely mess in large part because the Supreme Court in the arena of sentencing reform has for too long been far too willing to trust other institutions to protect defendants' rights at sentencing. If defendants' procedural rights had been well-respected throughout the development of sentencing reforms, Blakely would have been a blip rather than a bombshell.
October 17, 2004
OK Blakely insights
Though this great conference in Oklahoma City covered a lot of important non-Blakely ground, my own sentencing thoughts still are always Blakely-ized these days (as this prior post about the conference reveals). Of course, feeding my Blakely addiction is the fact that I learn more about the post-Blakely world every time I hear from folks living in that world.
At Oklahoma City, Professor Barry Johnson moderated a terrific panel which included US Tenth Circuit Judge Stephanie Seymour, WD Okla Federal Public Defender Susan Otto, and WD Okla US Attorney Robert McCampbell. All three shared important and insightful observations about what Blakely has meant and could mean in the federal system: Judge Seymour detailed how many Blakely appeals the Tenth Circuit has faced and her court's administrative efforts to deal with the Blakely blast; FPD Otto detailed the human realities of defendants and expressed hope that such realities could return to federal sentencing decision-making in a reformed post-Blakely system; USA McCampbell highlighted many of the uncertainties and challenges that Blakely has created due to the complicated nature of federal guideline sentencing and the large number of federal sentencing cases nationwide.
The comments of USA McCampbell, who since May has been serving as Chairman of Attorney General Ashcroft's Subcommittee on Sentencing, were especially encouraging. (Of course, he was not speaking on behalf of DOJ, but even his "unofficial" comments may provide some sense of how DOJ is thinking through the post-Blakely world.) Though McCampbell expressed hope that the government will prevail in Booker and Fanfan to keep Blakely from applying to the federal system, he also effectively canvassed many of the academic suggestions about how to restructure federal sentencing after Blakely. Because DOJ will surely have a big role — indeed, probably too big a role — in revising the federal system after Booker and Fanfan, it was heartening to hear that McCampbell had read and given serious thought to the many academic ideas that have been set out on this blog and elsewhere.
In addition, McCampbell in his written materials for the conference thoughtfully stated that "the debate on sentencing policy which has been catalyzed by the events of 2004 is healthy," and he also stressed the value of "transparency" in sentencing. I could not agree more with both sentiments, and the emphasis on transparency is especially astute. (I often think of this blog as an exercise in sentencing transparency, and my interest in transparency accounts for my eagerness for sentencing data as expressed here and here and so many other places on the blog.) Here's hoping that DOJ officially believes that transparency is a key value that should apply to its own decisions and advocacy, and also that DOJ urges the US Sentencing Commission and Congress to emphasize transparency in any and all post-Blakely reform efforts.