October 30, 2004
Has Prop. 66 been terminated?
According to this SF Chronicle article, the expressed opposition by Governor Arnold Schwarzenegger and law enforcement officials to Proposition 66, the initiative on the November ballot to amend California's Three Strikes Law, has dramatically shifted opinions on the proposal. As the article notes, earlier polling showed Proposition 66 having wide support, but now polls show an equal number of supporters and opponents.
Just some of the additional coverage of Proposition 66 today comes from The Desert Sun and the San Jose Mercury News and the San Diego Union Tribune. Also, the New York Times has this editorial supporting Prop. 66, which is discussed at TalkLeft here.
Keys to avoiding Blakely in the Keystone state
Right after the Blakely ruling in June, members of the Pennsylvania sentencing commission explained why the decision "barely laid a glove on Pennsylvania's guidelines" (details here). A ruling yesterday from the Superior Court of Pennsylvania, the state's intermediate appellate court, seems to confirm this view.
In Commonwealth v. Bromley, 2004 WL 2418029 (Pa. Super. Oct. 29, 2004), the court explains that "Pennsylvania employs an indeterminate sentencing scheme [and] there are significant differences between Washington's sentencing scheme and Pennsylvania's which bear upon the applicability of Blakely in the instant matter." The court goes on to explain why "in the Pennsylvania scheme, unlike the Washington scheme, there is no requirement that a sentencing court make a specific finding prior to sentencing in the aggravated range. The sole requirements are that the judge follow the general principles outlined [by statute] and provide reasons for the sentence which he or she imposes."
The Bromley court thus holds that "Blakely does not implicate the Pennsylvania scheme, where there is no promise of a specific sentence, and a judge has the discretion to sentence in the aggravated range so long as he or she provides reasons for the sentence." And, applying its holding to the case at hand, the court explains:
In the instant matter, the sentencing court based its decision to sentence in the aggravated range on Appellant's lack of any work history other than criminal activity, his history of drug and alcohol abuse, the failure of previous rehabilitative efforts, and the need to protect the community. Thus, the sentencing court did not make any specific findings of fact about the underlying crime but rather exercised its discretion in the manner specifically approved in Apprendi, Ring, and Blakely.
The Ninth Circuit's nimble Blakely dodge
In US v. Mayfield, 2004 WL 2415039 (9th Cir. Oct. 29, 2004), the Ninth Circuit was able to affirm a lengthy sentence in a drug case even though a two-level sentencing enhancement was made by the judge because defendant Mayfield possessed a firearm:
Here, Mayfield was sentenced to 262 months. Without the two-level upward adjustment for the firearm, the applicable sentencing range would have been 210-262 months, based on a total offense level of 36 and a criminal history category of II. Mayfield's sentence of 262 months falls within the upper-most part of this range. Therefore, the district court did not violate the principles of Blakely because the court could have imposed a 262-month sentence solely on the basis of the facts reflected by the jury's verdict. Whether the court actually would have sentenced Mayfield to a term of imprisonment of 262 months in the absence of the two-point enhancement is unknown. Nonetheless, because the sentence imposed by the district court was within the applicable Guidelines sentencing range under the facts found by the jury, the 262-month sentence imposed by the court does not offend the Sixth Amendment as interpreted by the Supreme Court in Blakely, or by our court in Ameline.
The (incomplete) innocence revolution
One reason I do not think anyone can confidently predict the post-Blakely future of sentencing reform is because criminal justice evolutions are often unpredictable. Obviously, the Blakely decision itself confirms this assertion in the arena of non-capital sentencing. Another unpredictable story in recent times has been the way exonerations of innocent persons from death row has catalyzed a sea-change in the politics and practices of capital punishment. (I wrote a bit about these developments a few years ago here as part of this symposium I helped organize at Ohio State on "Addressing Capital Punishment Through Statutory Reform.")
As detailed here, the Death Penalty Information Center has been a leading voice in the innocence conversation through major reports and comprehensive web coverage. And this conversation will be enriched next week at this symposium hosted by Northwestern's Journal of Criminal Law and Criminology entitled "Innocence in Capital Sentencing." The event will, in the organizers' words, "bring together a talented and distinguished group of professors and practitioners to discuss the impacts of wrongful convictions on the capital punishment debate."
I was quite intrigued to see in this account of the JCLC event that Professors Carol Steiker and Jordan Steiker plan to discuss how "focus on innocence draws attention to or deflects attention from important, non-innocence related questions surrounding our criminal justice system." I have long been concerned that heightened concern about innocent defendants on death row has been coupled with heightened disregard of guilty defendants on death row.
Moreover, a powerful article from the November San Francisco magazine about innocent convictees in California available here leads me now to worry that heightened concern about innocent defendants on death row has been coupled with heightened disregard of innocent defendants who are not on death row. The article highlights the exoneration of more than 200 Californians over the past 15 years, most of whom were serving lengthy prison terms, and notes the "surprisingly little fanfare" over these developments. The article provocatively suggests that, because of the extra attention and safeguards in the capital sentencing system, "an innocent Californian convicted of murder is almost better off being sentenced to death than to life in prison — at least the case will get a long, hard look."
The innocence revolution is not technically a sentencing story, but the impact it has had on the death penalty dialogue has obviously been profound. In addition, the San Francisco magazine article links these issues to Three Strikes developments in California. But I am still unsure whether innocence concerns draw a healthy form of attention to, or instead distracts from, pressing issues of sentencing law and policy.
October 29, 2004
More on Blakely-ized indictments and retroactivity
Yesterday's Blakely reports from the federal district courts included noteworthy developments and rulings on Blakely-ized indictments here and Blakely's (non-)retroactivity here. In the course of trying to "close the book" on this week's developments, I noticed two more cases on these topics decided recently that only of late showed up on Westlaw.
In US v. Jamison, 2004 WL 2385003 (W.D. Wis. Oct. 21, 2004), Magistrate Judge Crocker filed a thoughtful report recommending that the court deny motions by the defendant to strike sentencing allegation from the indictment. Along the way, Judge Crocker explains that "pragmatically, unless the court stays all of its pending criminal trials, the most risk-free course of action [while the law is unsettled] is to continue the current practice of allowing sentencing allegations in the indictment and holding a bifurcated sentencing hearing."
In US v. Falodun, 2004 WL 2397612 (D. Minn. Oct. 25, 2004), Judge Montgomery joined the growing list of district judges to rule on the record that Blakely is not to be applied retroactively: "Even were Blakely's holding to apply to the USSG, this Court concludes that Blakely would not apply retroactively to matters on collateral review." However, as some earlier comments have flagged here, this ruling is among many that do not fully grapple with the impact of the burden of proof on the overall retroactivity analysis.
The intricacies of Blakely in Ohio
Once again, I feel I learned more than I taught when participating in a session on Blakely this morning. Though I thought I was to share the Blakely podium with Judge Burt Griffin, his trial schedule kept him from being able to attend the event hosted by Ohio Association of Criminal Defense Lawyers. But that loss became a gain when I had a chance to meet and hear from Cuyahoga County Assistant Public Defender John T. Martin.
After I provided general background on Blakely, John gave a thorough and thoughtful (defense-oriented) account of all the potential Blakely issues/problems under Ohio's intricate (and very judge-centric) sentencing laws. Though I have been following the Ohio Blakely story closely (as detailed here and here and here), John's very effective presentation highlighted for me just how many challenging and uncertain Blakely legal issues will need to be resolved in Ohio. And the thoughtful questions from the audience also highlighted how may challenging and uncertain Blakely strategy issues defense counsel now face representing individual clients at a time of so much legal uncertainty.
Coming insights from the OACDL
I am off (and off-line) this morning to talk to the Ohio Association of Criminal Defense Lawyers about Blakely. I am not only looking forward to hearing this group's perspective on Blakely happenings, but also eager to hear from Judge Burt Griffin who will be speaking specifically about Blakely in Ohio. As noted before and detailed here, Judge Griffin played a central role in Ohio's development of a distinct form of structured sentencing —a form which might escape or be decimated by the Blakely earthquake.
The most overloaded branch
Alexander Hamilton (and Alexander Bickel) famously described the judicial branch as the "least dangerous" branch of government. Especially in a post-Blakely world, I am seeing that the label "most overloaded" branch would also fit.
As noted before here, my discussion with court administrators highlighted to me their chief concerns about how Blakely may further burden an already over-burdened system of federal court administration. And yesterday I heard from a law clerk in charge of helping to process habeas claims who explained that if "a hundred legitimate, and several hundred frivolous, claims suddenly appeared, we would be in serious trouble."
Further evidence of these realities and concerns comes from this The Third Branch interview with Judge Ricardo H. Hinojosa (S. D. Tex.), who was appointed chair of the US Sentencing Commission in July. (The Third Branch is the official newsletter of the federal courts and it did a terrific job covering Blakely here back in August.) The Hinojosa interview includes a bit of interesting Blakely and PROTECT Act talk, and highlights this noteworthy trend in federal criminal caseloads:
[I]n fiscal year 1990, the Commission received documentation for 29,000 cases sentenced under the guidelines. Ten years later, in FY 2000, without any increase in allotted staff, the Commission logged in 59,846 cases. In FY 2004, the projected total number of cases filed is hovering at 70,000.
October 28, 2004
Careful retroactivity analysis from WD of Virginia
Today in Lilly v. US, 1:04CV00079 (W.D. Va. Oct. 28, 2004), Chief United States District Judge James P. Jones issued a thoughtful opinion (available here) dealing with Blakely retroactivity issues. Chief Judge Jones notes that the Fourth Circuit's Hammoud decision means that, for the time being, "sentences under the USSG are not impacted by Blakely in this circuit." He goes on to explain that "even if Blakely is held applicable to the USSG, it does not apply retroactively to Lilly's case."
Walking effectively and clearly through all the steps of Teague, Chief Judge Jones holds that (1) Blakely is "a new rule for purposes of determining retroactivity," (2) that "Blakely announced a new procedural rule" because "Blakely does not alter the elements of the offense but merely requires that a jury find beyond a reasonable doubt any facts that the USSG requires in order to enhance a sentence, and (3) "Blakely is a new procedural rule that does not meet the requirement of being a watershed rule of criminal procedure."
The Lilly opinion also addresses a number of related issues concerning the posture and possibilities of different claims for retroactive application of Blakely. Though all the retroactivity analysis in Lilly is, in a sense, dicta, the decision provides a terrific road map through the complicated terrain of retroactivity. Though I am sure defendants with final convictions will not like where the destination ends, everyone working through these complicated issues should benefit from the mapping done in Lilly.
Indicting up Gotti
With organized crime infiltrating pop culture — with shows ranging from HBO's The Sopranos to A&E's Growing up Gotti — we knew it would only be a matter of time before organized crime infiltrated the world of Blakely. And, earlier this week, through US v. Gotti, 2004 WL 2389755 (S.D.N.Y. Oct. 26, 2004), US District Judge Richard Conway Casey issued an interesting Blakely decision in a case involving the Gambino Organized Crime Family.
The interesting factual backdrop for the Gotti decision should not overshadow Judge Casey's thoughtful and cautious ruling in response to the defendant's claims that sentencing allegations in a Blakely-ized indictment "are mere surplusage that may be prejudicial to Defendants at trial." In a well-reasoned opinion that merits a full read, Judge Casey highlights that the "confluence of Booker and Fanfan looming on the horizon and Mincey controlling the present left the Government in a quandary in this case and in others." Judge Casey thereafter explains why most of the facts, of the added allegations do not constitute surplusage, any then adroitly avoids a definitive ruling on matters of trial procedure for proving those allegations. Here's the court's summary:
For the foregoing reasons, Defendants' motion to strike the sentencing allegations in the eighth superseding indictment is GRANTED IN PART and DENIED IN PART. The term "Sentencing Allegations" and the citations to the Sentencing Guidelines are irrelevant and may be prejudicial; therefore, they shall be struck. The factual allegations, however, shall remain. The Court reserves decision on whether the sentencing enhancements will be presented to the jury, and if so, whether the Court will hold a separate sentencing proceeding. These issues may be resolved by the Supreme Court's forthcoming decision in Booker and Fanfan.
UPDATE: An attorney from Virginia wrote in to report that "on October 26, Judge Gerald Bruce Lee (US District Court, ED of Virginia) ruled from the bench in US v. Johnson that sentencing factors must be stricken from an indictment as surplusage under Rule 7(d)." Recall that the Fourth Circuit, in US v. Hammoud, 378 F.3d 426 (4th Cir. 2004), upheld the constitutionality of the sentencing guidelines, and counsel argued that the government, after having "gotten what it asked for in Hammoud, ... was now asking lower courts to disregard its holding by seeking to create a new jury-sentencing regime in case they turn out to be wrong. The Disitrct Court agreed that Hammoud required it to reject this attempt. The defendant preserved the right to challenge the guidelines under under Blakely at sentencing in the event of a conviction."
California hits triple digits!
As of this evening, there are 103(!) California intermediate appellate cases on Westlaw discussing Blakely . I have not been able to keep up with all of these California decisions, and I am wondering if anyone is trying to track and assess all the California action. Also, I wonder if readers know when the two Blakely cases that were accepted for review by the California Supreme Court, Towne and Black, are scheduled to be argued.
October 27, 2004
The Blakely earthquake hits Arizona
Though there has previously been some Blakely rumblings in Arizona (detailed here and here and here), the Blakely earthquake officially hit the 48th state through the Arizona Supreme Court's decision in State v. Brown, 2004 WL 2390005 (Ariz. Oct. 27, 2004).
Brown is a fascinating little opinion as much for what it does not say, because on appeal the government conceded that the lower court opinion, which held that the "maximum sentence" for purposes of Apprendi was the super-aggravated 12+ year sentencing term under Arizona law, "cannot withstand analysis in light of Blakely." Specifically, the Arizona Supreme Court confirmed that it was no longer proper for a defendant to be "sentenced to a term greater than the presumptive sentence solely on the basis of facts found by the trial judge upon a showing of 'reasonable evidence'":
The "maximum sentence" for Apprendi analysis in this case is the five-year presumptive sentence in § 13-701(C)(1). Because a sentence in excess of five years could be imposed on McMullen only after a finding of one or more of the aggravating circumstances in § 13-702(C), the Sixth Amendment guarantee of jury trial extends to the finding of these facts and requires proof beyond a reasonable doubt.
But, after making clear the applicability of Blakely to Arizona's basic sentencing structure, the Brown court stopped in its tracks:
The parties and their amici ... ask us to address myriad other questions that may arise either in the further prosecution of this case or in other cases potentially affected by the Apprendi and Blakely decisions. Given the procedural posture in which this case arrived in this Court, we decline to do so. While many of these additional issues deserve serious consideration, almost none have been directly addressed by the trial judge, and none were raised in or decided by the court of appeals. We are unwilling, even in this important area of the law, to consider these issues as an initial matter in the context of this special action.
We recognize and appreciate the interest that both the State and the defense bar have in understanding the full implications of Apprendi and its progeny for the Arizona sentencing scheme. We believe, however, that the best approach is to resolve any such questions in this dynamic area of the law in the context of a case in which the relevant issue is squarely presented, properly briefed, and addressed by the courts below. We also are mindful that the legislature may choose to moot many such questions, as it did in the wake of Ring, by enacting new sentencing statutes. We therefore leave additional questions not addressed below to another day.
Roper v. Simmons oral argument transcript now on-line
You can now access on-line here the oral argument transcript Roper v. Simmons, the case addressing the continued constitutionality of executing offenders who committed their crimes while juveniles. (Some of my earlier coverage of the case can be found here and here and here.)
The oral argument transcript is a fascinating read, in part because of the range of tough jurisprudential questions the Justices touch upon — e.g., can age be an aggravating factor as well as a mitigating factor at capital sentencing? would the Founders have thought world opinion was relevant in a determination of what constitutes an "unusual" punishment? The transcript alone suggests that the Supreme Court's decision in Roper v. Simmons will be interesting and important.
October 26, 2004
Coping with Blakely
I am back from Atlanta after having a chance to speak about Blakely with federal District Court Clerks and Executives. And, as well put by my insightful co-presenter Professor Marc Miller, "the clerks and administrators were an interesting crowd — as much for what they didn't say as for what they did." Specifically, no one gave us the impression that the "sky was falling," although we could feel concerns about the possibility of more trials and the prospect of a wave of habeas petitions. But much more palpable than any focus on Blakely specifics was the sense that court administrators are often not provided all the funds and personel they need, and that Blakely may just further burden an already over-burdened system of federal court administration.
Meanwhile, I return to discover that the Third Circuit today found its own way to cope with Blakely in US v. Trala, 2004 U.S. App. LEXIS 22264 (3d Cir. Oct. 26, 2004). The court turn away two (plausible) Blakely claims by saying one matter concerned a question of law, not fact ("whether an offense is a 'crime of violence or a controlled substance offense' is a legal determination, which does not raise an issue of fact under Blakely"), and that the other matter did not involve an issue of disputed fact ("Blakely and Apprendi apply only where there is a resolution of disputed issues of fact that results in a sentencing enhancement beyond the statutory maximum.... Here, there was no contested evidence about the amount of money that was taken. Therefore, the amount of restitution was not a disputed issue of fact under Blakely.").
Relatedly, today the Tenth Circuit today also found a way to affirm an order of restitution over a Blakely challenge in US v. Lewis, 2004 U.S. App. LEXIS 22269 (10th Cir. Oct. 26, 2004):
We recently held that a restitution order does not violate either Blakely or Apprendi if it does not exceed the statutory maximum restitution amount or the value of the damages to the victim. United States v. Wooten, 377 F.3d 1134, 1144 n.1 (10th Cir. Aug. 10, 2004). The district court here imposed restitution pursuant to 18 U.S.C. § 3663, which does not specify a statutory maximum for restitution. Moreover, Lewis does not, and has not, challenged that the restitution exceeds the amount her victims lost. Thus, under our holding in Wooten, the restitution Lewis was ordered to pay under 18 U.S.C. § 3663 does not exceed a statutory maximum and does not violate Apprendi.
Business as usual at the USSC?
Today I received an e-mail notice that the October 2004 edition of the "GuideLines newsletter" is now available for viewing on the US Sentencing Commission's website. Here is the link to all of the USSC's newsletters, and here is the link to the October 2004 pdf edition.
Consistent with its apparent "less is more" philosophy post-Blakely, this newsletter says amazingly little about the real post-Blakely world of federal sentencing, while continuing to discuss pre-Blakely work and plans. The document does include this recognition of reality:
With regards to the pending Supreme Court cases of United States v. Booker and United States v. Fanfan, the Commission's belief continues to be that the federal sentencing guidelines are constitutional. We have expressed that belief in our recent testimony before the Senate Judiciary Committee, and we have reasserted that viewpoint in an amicus brief that we filed with the Supreme Court of the United States on September 1. However, the Commission continues to monitor viewpoints of individuals and organizations from across the country for study, consideration, and implementation if it should ever become necessary.
I will likely be off-line the rest of Tuesday as I travel to Atlanta to speak about Blakely at the "2004 National Conference for District Court Clerks, District Court Executives, and Chief Deputy Clerks." This should be an interesting event because the clerks do not have a partisan stake in the substance of Blakely and Booker /Fanfan, but they have a direct concern with the administration of federal sentencing.
In a pre-event conference call, I heard that issues of concern for the clerks were (1) whether Blakely et al. would lead to an upsurge in the number of criminal jury trials (and the accompanying administrative challenges and costs of conducting such trials), and (2) whether and how Blakely et al. retroactivity claims would be handled and could be processed. I have a few thoughts on these matters to share, and I am looking forward to hearing the clerks' perspectives on these issues.
I hope to be back on-line by late Tuesday night, but posting may not resume until Wednesday. Of course, I posted a lot of interest before leaving, and I also encourage those needing to feed their Blakely addiction to be sure to review (and send me comments on) my "Conceptualizing Blakely" article available here.
The full Blakely in Washington state
Continuing the trend of rapid-fire state Blakely decisions of great insight and important, on Monday in State v. Harris, 2004 WL 2378276 (Wash. App. Div. 1, Oct. 25, 2004), a Washington appellate court thoughtfully reviews an array of Blakely issues — ranging from severability to court power to double jeopardy — in the course of reaching this result:
We conclude that the exceptional sentence statutes are not facially invalid. But because Harris' stipulation at trial did not admit the facts the court relied on to support the exceptional sentence, we reverse the sentence. We also hold that the superior court on remand has authority to empanel a jury to consider aggravating factors.
The decision can also be accessed here, although it is easier to read on Westlaw. Strangley, though, this important concurring opinion in Harris is not right now appearing on Westlaw. The concurrence starts with this paragraph:
I agree with the majority that our statutes, governing case law, and court rules support the conclusion that trial courts have inherent power to empanel juries to try alleged aggravating sentencing circumstances. I write separately to emphasize that whether courts invoke that power is another matter, requiring careful consideration of the circumstances and the interests of justice in each case.
California's messy Blakely landslide
Perhaps it should come as no surprise that, in the wake of the Blakely earthquake, a landslide of opinions are flowing from the California appellate courts. I noted here last month how fast and furious the action is in California, and now there are on-line nearly 100 appellate court cases from California that discuss Blakely.
And, as if the post-Blakely world in California was not messy enough, a reader highlighted today that Blakely has led to some noteworthy in-fighting among one appellate division. In People v. Eugene, D044043 (Cal. App. Ct. Oct. 25, 2004), and People v. Wagener, D042896 (Cal. App. Oct. 22, 2004), different panels of the same court split in very vocal ways over whether California's sentencing scheme is constitutional after Blakely.
As detailed here, briefing is far along in the two cases, People v. Towne and People v. Black, that the California Supreme Court is using to examine Blakely issues. Obviously, to bring greater order to California sentencing, decisions in these cases cannot come soon enough.
Another academic view on Blakely
Two years of exciting toiling at Gannett House entails that the Harvard Law Review will always have a warm spot in my heart. And this time of year I get a bit giddy with anticipation for the HLR's annual Supreme Court issue. Adding to the excitement, the contents of that issue can now be seen here, and the full text of the Foreword authored by Professor Richard Pildes can be accessed here and the full text of a Case Comment on Blakely is available here.
Professor Pildes' Foreword does not mention Blakely, even though it is concerned with issues of democratic theory that Blakely implicates. But the Case Comment provides plenty of Blakely food for thought by arguing that "the decision does not call into question sentences imposed in a regime that permits judges to depart 'solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.'"
The vagaries and vagueness of hate crime sentencing
Today in Botts v. Georgia, S04A0798 and Pisciotta v. Georgia, S04A0799 (Ga. Oct. 25, 2004) (available here), the Georgia Supreme Court unanimously declared "unconstitutionally vague" Georgia's hate crime penalty statute, which "requires the enhancement of criminal sentences whenever the fact finder determines beyond a reasonable doubt 'that the defendant intentionally selected any victim or any property of the victim as the object of the offense because of bias or prejudice.'"
The decision is an interesting read that gets a bit comical when the court explains that the statute's broad language, "by enhancing all offenses where the victim or his property was selected because of any bias or prejudice, encompasses every possible partiality or preference:"
A rabid sports fan convicted of uttering terroristic threats to a victim selected for wearing a competing team's baseball cap; a campaign worker convicted of trespassing for defacing a political opponent's yard signs; a performance car fanatic convicted of stealing a Ferrari -- any "bias or prejudice" for or against the selected victim or property, no matter how obscure, whimsical or unrelated to the victim it may be, but for which proof beyond a reasonable doubt might exist, can serve to enhance a sentence. Absent some qualification on "bias or prejudice," [the statute] is left so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application [and] is too vague to justify the imposition of enhanced criminal punishment for its violation.
Newspaper coverage of the decision, which provides background on the statute and legislators' plans to respond to the court ruling, can be found in the NY Times and in the Atlanta Journal Constitution.
Though not discussed in Botts/Pisciotta ruling, the broader story of the efficacy and symbolic impact of hate crime enhancements is intriguing. Links here and here and here and here provide more background and a range of perspectives for those interested in further exploration of these issues.