October 25, 2004
The state of state sentencing in Ohio
I have previously called Ohio a Blakely bellwether — or maybe I should call it a Blakely swing state — because the impact of Blakely's formal rule on Ohio's functional sentencing laws could be extreme or extremely minor (background here and here).
To its great credit, members of the Ohio Criminal Sentencing Commission earlier this month put together a number of helpful documents about Blakely in Ohio, including an overview of Blakely cases in Ohio Courts and memos here and here on Blakely's possible impact on Ohio law. Though the passage of a few weeks already makes these documents a bit dated (more recent developments are noted here), collectively these materials provide a valuable overview of Blakely developments in Ohio.
And for folks interested in broader sentencing reform stories, there is a lot more to learn from Ohio's development of its modern sentencing structure. The full Ohio story is well told by Ohio Judge Burt W. Griffin and Professor Lewis Katz in Sentencing Consistency: Basic Principles Instead of Numerical Grids: The Ohio Plan, 53 Case W. Res. L. Rev. 1 (2002). And, by way of the kind Professor Jerry Israel, I have here to be downloaded a short description of "the Ohio Plan" authored by Judge Griffin. Professor Israel astutely says "I suspect that the Ohio approach, if it gains the attention it deserves, will receive widespread support among judges."
The seamless web of Blakely
Law students both past and present recall the old aphorism "law is a seamless web" (a phrase we can apparently pin on Frederic William Maitland as explained here). In the context of sentencing reform and the Blakely upheaval, it is quite appropriate to follow the web back to the how we define the scope and reach of the criminal law.
Consequently, though not technically a sentencing event, a symposium organized by American University's Law Review, the National Association of Criminal Defense Lawyers and the Heritage Foundation entitled "Overcriminalization: The Politics of Crime" merits mention. As detailed in the symposium brochure available below, a impressive array of speakers will be covering a range of interesting criminalization topics this coming Friday at AU's Washington College of Law.
As if we need more drama
CNN is reporting here that "Chief Justice William Rehnquist has undergone throat surgery after a diagnosis of thyroid cancer, but is expected to be released from the hospital this week." According to the story as of 12:22pm:
Court spokeswoman Kathy Arberg said the 80-year old chief justice was admitted to the National Naval Medical Center at Bethesda, Maryland, on Friday, and underwent a tracheotomy Saturday.
Arberg said he is expected to be released from the hospital this week, and to be back on the bench when court arguments resume next week.
For now I will just wish our Chief Justice a speedy recovery (though it is hard to avoid thinking about what this might mean for Booker and Fanfan — let alone election day voting and election litigation). The SCOTUS Blog has more details and commentary here, and this informative MSNBC report notes that three other members of the High Court have been diagnosed with cancer. I will say that I am starting to think we are all just living in a John Grisham novel.
FURTHER UPDATE: At How Appealing there are now a plethora of links to continuing coverage of the Chief Justice's health, and the SCOTUS Blog has a fascinating Q&A here on retirement/replacement possibilities.
October 24, 2004
Conceptualizing Blakely (in draft)
Professor Charles Fried had this interesting op-ed, entitled "Courting Confusion," in the NY Times Thursday (which has already generated interesting responses from Professors Jack Balkin and Stephen Bainbridge and Ann Althouse). Though I am disinclined to weigh into the broader jurisprudential scrum, the last line in Professor Fried's discussion of the work of the Supreme Court caught my eye:
I fear an indefinite and incoherent prolongation of a fin-de-siècle jurisprudence, where the court serves as nothing more than an ad hoc arbiter of issues it finds too difficult to decide in a principled way.
Though Professor Fried does not discuss Blakely in his op-ed, his closing words certainly fit what many may fear is the future of sentencing jurisprudence in the wake of Blakely. But, as I first previewed in this post, I have been working on finding Blakely's core principle in an article entitled "Conceptualizing Blakely" for the next issue of the Federal Sentencing Reporter.
I have now finished a working draft of "Conceptualizing Blakely" that is fit for public sharing. Though I feel this draft only starts to scratch the conceptual surface of Blakely, I hope I advance the analysis a bit. I heartily welcome reactions and suggestions either in the comments here or via e-mail.
Living with Blakely and Ameline
Early last week I asked here about what the federal sentencing world was like in the Ninth Circuit, which as a result of the decision in Ameline is the one jurisdiction having to deal directly Blakely-ized guidelines. Interestingly, one district court clerk indicated in the comments that "we are not having much trouble adjusting to the post Ameline world.... Our court conducts 3 sentencing proceedings each week and I would estimate that a contested Blakely issue only arises once a month at the most."
But this article in the LA Times paints a much different picture of life "on the ground" in the Ninth Circuit. The article's headline asserts that Blakely and Ameline have caused "confusion for federal jurists and prosecutors," and it portrays the state of federal sentencing in Los Angeles as chaotic. One especially interest section of the article details a dispute over efforts to secure Blakely waivers in LA:
[Chief Assistant US Attorney George] Cardona said ... that more than 97% of all criminal cases brought by his office end in guilty pleas. Accordingly, the U.S. attorney's office has adopted a policy of including so-called Blakely waivers in proposed plea agreements. By signing such a waiver, a defendant agrees to be sentenced under the old guidelines that are now under a cloud.
Maria E. Stratton, chief federal public defender in Los Angeles, has raised legal and ethical objections to the waivers. "If the guidelines are unconstitutional, they are unconstitutional, and our clients cannot and should not be sentenced under them," she wrote to top brass at the U.S. attorney's office.
Stratton added that her office would refuse to enter into any Blakely waivers, except in cases where the maximum punishment would fall between zero to six months in custody. She said she would consider authorizing an exception only under extraordinary circumstances. "I believe this response to the waivers proposed by your office is the ethical way to represent our clients and constitutes effective assistance of counsel," she said.
Blakely, mandatory minimums and the safety valve
In yet another interesting district court ruling from Utah, US District Judge J. Thomas Greene in US v. Aguilar Guilardo Parra, 2004 U.S. Dist. LEXIS 21133 (Oct. 20, 2004), thoughtfully explores the impact of Blakely in the application of certain mandatory minimums and the so-called "Safety Valve" provision of USSG § 5C1.2 and 18 USC § 3553(f). Judge Greene explains that "Blakely does not require jury involvement in connection with any increase of a sentence under the Guidelines where such increase results from prior conviction(s) [and] Blakely does not apply to any action by the court which would decrease rather than increase a sentence," and consequently "Blakely is not implicated and does not apply to sentencing issues in this case."
The decision in Aguilar Guilardo Parra is both cautious and contained in its analysis, but it merits a read for its thoughtful review of the scope of Blakely and Judge Greene's determination that he can make needed factual findings under the Safety Valve without regard to Blakely. In addition, Judge Greene's thoughtful non-Blakely discussion of the Safety Valve and of the acceptance of responsibility guideline are noteworthy.