November 6, 2004
Continued Prop. 66 post-game analysis
A number of California newspapers continue to run interesting stories as follow-up to the defeat of Proposition 66, the initiative to amend the state's Three Strikes Law that was defeated in a close vote in on Tuesday. For example, here is an interesting article from the Oakland Tribune discussing the impact of Prop. 66's defeat on two-strike parolees. In contrast, this Ventura County Star article and San Mateo Daily Journal piece details that prosecutors and other law enforcement officials were gratified by Prop. 66's defeat.
Meanwhile, this Sacramento Bee editorial, entitled "Scaremongering wins," analyzes the political forces leading to Prop. 66's defeat and urges continued efforts to amend California's Three Strikes Law:
California's prison-industrial complex is strangling the state's future. It's soaking up dollars that could go to education, housing, transportation and other basic infrastructure that enhances the state's prosperity and quality of life. That system locks away for too long people who are not dangerous and makes them more dangerous. Yet it fails to lock away for long enough people who truly are dangerous.
Proposition 66 was defeated, but that shouldn't end efforts to reform California's irrational sentencing system. Reformers should bring this one to voters again — and be better prepared for last-minute scare tactics.
More affirmances despite Blakely in the First Circuit
The First Circuit, continuing a trend highlighted earlier this week here, continues to use plain error analysis to affirm sentences imposed before Blakely over Blakely objections. See US v. Coyne, 2004 U.S. App. LEXIS 22964 (1st Cir. Nov. 3, 2004); US v. Stokes, 2004 U.S. App. LEXIS 23290 (1st Cir. Nov. 5, 2004). The Stokes ruling is particularly noteworthy because the First Circuit asserts that "even if Blakely is held to apply to the Federal Guidelines, we find no basis for reversal" because "the judge's findings — that Stokes used an AK-47 during a crime of violence, and that such a gun is extraordinarily dangerous — were 'overwhelmingly' proven."
Fascinating Blakely reports on Enron trial
Earlier this week I asked here for readers to report on any first-hand experiences (good or bad) with juries doing sentencing factfinding. There are some great insights shared in the comments to that post, and I have also received other direct feedback from judges and lawyers that reinforces my general sense that having juries involved in sentencing factfinding has not proved too cumbersome or problematic.
Additional news and insights on this front come from the on-going trial of a group of Enron defendants in the so-called Nigerian barge case. (The Houston Chronicle has this impressive site with background on the case and all its reporting.) Despite the fact that the Fifth Circuit has held that Blakely is inapplicable to the federal guidelines (details here), the government sought, and US District Judge Ewing Werlein has arranged for (over defense objections), jury factfinding on seven aggravating factors about the conspiracy and fraud.
The Houston Chronicle has already run three fascinating articles about this Blakely-inspired sentencing proceeding: Ruse cost Enron investors $43 million - or $120,000; Jurors deliberate unorthodox Enron sentencing; and Jury to continue deliberations on sentences of 3. All three articles are must-reads for anyone interested in a case-specific perspective on how Blakely could play out "on the ground."
Though I cannot readily summarize all the rich details in these great articles, I must note a few interesting facts: (1) of the five convicted defendants, two waived a jury sentencing trial and apparently agreed to judicial factfinding (though the article does not note what burden of proof will apply); (2) it appears that the sentencing phase took only two days after a seven-week guilt phase; (3) through competing expert witnesses (including Dan Fischel, a University of Chicago law professor who testified for the defense), the dispute over the amount of the loss in the offense is enormous, with the government claiming a loss of $43 million and the defense claiming a loss of no more than $120,000; (4) in addition to loss, the jury is also considering facts relating to role in the offense, abuse of trust, more than minimal planning and related issues; and (5) the attorneys spoke directly and diversely to the jury about their sentencing role:
Tom Hagemann, attorney for [defendant] Bayly, told the jury their decisions could alter "whether Mr. Bayly goes to prison for 15 years or not at all."
But prosecutor John Hemann told jurors that it is the judge, not the jury , that will decide the punishments and they are to consider the facts before them and not be swayed by attempts to garner sympathy.
November 5, 2004
More events and weekend reading around the blogsphere
As previously noted in this November calender, the US Sentencing Commission has a big Blakely-related public hearing/meeting planned for November 16-17. The official notice of the meeting now appears here, and I can also report that I have the honor of being one of the persons asked to testify. I will post additional details about the event when available.
Meanwhile, if you want to spend all weekend reading about sentencing law and policy developments, I can already point you to a number of items worthy of attention thanks to fellow bloggers. For example, Howard Bashman has interesting news and links concerning a state death penalty ruling from Colorado here and a federal death penalty from Boston here. Michael Ausbrook at INCourts already has lots of Blakely talk and plans for more on Indiana cases. Crime & Federalism reports here on an interesting forfeiture case. And, last but certainly not least, there is an amazing dialogue taking place in here in the comments to a this recent post about Judge Panner's sentence in Detwiler.
More noteworthy state Blakely developments
It now seems that not a day goes by without a noteworthy state Blakely ruling coming on-line. This afternoon, I found at least three such cases in Strong v. State, 2004 WL 2481190 (Ind. App. Nov. 5, 2004), and People v. Fogle, 2004 Colo. App. LEXIS 2004 (Colo. App. Nov. 4, 2004), and People v. Hogan, 2004 Colo. App. LEXIS 2001 (Colo. App. Nov. 4, 2004). (There are also, no doubt, a number of recent additional noteworthy California cases, but I have given up trying to keep up with doings there now that over 125 on-line Blakely cases come from that state alone!)
As seems often to be the case with state Blakely decisions, Strong and Fogle and Hogan all reach noteworthy legal conclusions while being rich with too many details and dicta to effectively summarize (especially on a Friday afternoon at the end of a tiring week). I hope it suffices to note that Strong reverses a sentence on Blakely grounds and you can read more details at INCourts here. Meanwhile, Fogle and Hogan affirm sentences over Blakely objections: Fogle is based on a seemingly shaky conclusion the court could "properly treat counsel's statements as an admission by defendant" to hold that "defendant admitted the fact on which his enhanced sentence was based;" Hogan seems grounded more solidly on the conclusion that enhancement of the defendant's sentence did "not require proof of any fact other than the elements of kidnapping-robbery and aggravated robbery, which were necessarily proved beyond a reasonable doubt, as [was] apparent from the jury's verdict."
Upcoming sentencing conferences
I am pleased to be able to report that academic examination of sentencing law and policy continues apace with a number of major conferences in the coming weeks and months. Though Blakely is fueling some of this activity, the scope of these events are appropriately expansive to cover many other important issues.
Next week, for example, on November 12-13, the University of Chicago Legal Forum's Annual Symposium is dedicated to "Punishment and Crime." Details about the event can be found here, where you will see I have the honor of serving as the Keynote Speaker. The working title of my talk is "Conceptualizing Sentencing," and I plan to discuss in broader terms some of the concepts I started to developed in my recent "Conceptualizing Blakely" article. N.B.: I now have the early proofs of that article, which can be downloaded here: Download early_proof_of_conceptualizing_blakely.pdf
And, as Jason Hernandez first reported here, the Columbia Law Review has planned for January a symposium entitled "Sentencing: What’s at Stake for the States?". Like the University of Chicago event, this Columbia conference brings together an amazing and diverse array of academic speakers. You can get all the official details here.
I highly encourage others planning or attending events on any topic of sentencing law and policy to send me information and links (and/or put the details in the comments). As noted here, the week after Blakely was decided, Judge Joe Goodwin stressed how important it is for the "the academic community ... to make [our] views known to the judiciary, the Congress and the executive," and I hope this medium might assist in that effort.
UPDATE: A thoughtful readers sent in this link to a Blakely program tomorrow morning being put on by the Association of Criminal Defense Lawyers of New Jersey.
Further narrowing of Blakely's reach in the states
We have seen state courts find all sorts of ways to limit the reach of Blakely, and noteworthy recent cases from Arizona and Indiana continue the trend. In State v. Arciniega Martinez, 2004 WL 2474976 (Ariz. App. Div. 1, Nov. 04, 2004), and Wickliff v. State, 2004 WL 2453041 (Ind. App. Nov. 03, 2004), state intermediate courts find clever and questionable ways to keep Blakely from disrupting a sentence on review.
In Arciniega Martinez, the Arizona court explains that "a jury need not find every aggravator upon which a sentencing judge relies [and] Blakely error is subject to harmless error or fundamental error analysis and may or may not require reversal based on the facts of a particular case." There are many interesting features of the Arciniega Martinez court's holding and analysis, and perhaps the most noteworthy passage explains:
Because the jury found at least one aggravating factor, defendant was eligible to receive an aggravated sentence, and the trial court's weighing of additional aggravating and mitigating circumstances to determine the appropriate sentence within the aggravated range was permissible. Put another way, the jury having found the existence of one aggravating factor, its verdict expanded the sentencing range and the scope of the trial court's sentencing discretion. When one aggravating factor is authorized by the jury, Blakely is satisfied.
A similar approach and logic is applied in Wickliff, where the court details that various criminal history issues and facts admitted by the defendant supported an enhacned sentence and then explains:
Whether or not Indiana's sentencing scheme runs afoul of the Sixth Amendment, Wickliff's sentence would not be affected because even a single valid aggravating circumstance is sufficient to justify enhancement of a sentence Here, there were two valid aggravating circumstances identified by the court justifying enhancement of Wickliff's sentence.
UPDATE: A reader has provided a direct link here to the Arizona appellate court's decision in Arciniega Martinez.
November 4, 2004
The next chapter for California's Three Strikes?
Additional articles about the defeat of Proposition 66 in the Victorville Daily Press and in the San Francisco Chronicle provide additional details about the initiative's defeat and the possibility of future efforts to limit the reach of the nation's toughest Three Strikes Law. The SF Chronicle story explains the precise role Governor Arnold Schwarzenegger played in Prop. 66's defeat:
A last-minute advertising blitz featuring Gov. Arnold Schwarzenegger successfully shifted debate on the proposition from images of drug addicts and petty thieves serving unfairly harsh prison sentences to hardened criminals receiving get-out-of-jail-free passes, and the final count ended with 53 percent of voters opposed.
It will be interesting to see if Governor Schwarzenegger will also play an active role in a more moderate restriction on the reach of Prop. 66. The SF Chronicle article concludes by suggesting this is a possibility:
Even some who opposed Tuesday's try [to amend the Three Strikes Law] aren't adamantly against some kind of fix that prevents using the law for some nonviolent felonies.
San Mateo County District Attorney James Fox, a vocal opponent of Prop. 66, said he believed there "was sentiment out there to make some corrections to three strikes to eliminate the possibility of prosecutorial indiscretion.'' Fox said his office does not use three strikes against those accused of nonviolent crimes.
Schwarzenegger said Wednesday he hoped to talk to Attorney General Bill Lockyer -- the state's top criminal justice official -- about the issue.
Experiences with juries doing sentencing factfinding
Though US District Judge Stewart Dalzell in US v. Cropper, 2004 U.S. Dist. LEXIS 21949 (E.D. Pa. Nov. 2, 2004), recently refused to allow the government to submit sentencing factors to a jury (as detailed here), there are anecdotal report of juries involved in sentencing factfinding in many courtrooms. For example, Ellen S. Podgor at the White Collar Crime Prof Blog reports here on the on-going Enron-related criminal trial where five convicted defendants "are back in court today for the jury to hear evidence for the purpose of sentencing." And Michael Ausbrook at INCourts reports here on reports of a state judge presiding "over a real, live, Indiana, non-capital sentencing jury --apparently without objection from the defense."
I would be grateful if readers might be inclined to utilize the comments to report on any first-hand experiences (good or bad) with juries doing sentencing factfinding. I surmise from various anecdotal reports that having juries involved in this factfinding has not proved too cumbersome or problematic, but I doubt I am getting a complete picture from reading the occasional caselaw and newspaper accounts.
Pondering a post-Ashcroft DOJ
This CNN story about President Bush's second-term plans includes a report on an expected transition at the top of the US Justice Department:
Sources close to Ashcroft told CNN on Thursday that they believe it is most likely the attorney general will submit his resignation in the near future, possibly within the next two weeks.
Private signals from Justice Department sources have indicated for some months that the attorney general has no plans to serve a second term.
Some of the buzz I have seen and heard is that former Deputy Attorney General Larry Thompson may be the front-runner to replace AG Ashcroft. Thompson, in addition to already having the endorsement of TalkLeft, would be the country's first African-American attorney general. However, this pre-election law.com article, says other"possible nominees include: White House Counsel Alberto Gonzales; Bush's campaign chairman Marc Racicot, former governor of Montana; and former New York City Mayor Rudolph Giuliani."
This summer I suggested here, only half-jokingly, that former Solicitor General Ted Olson "probably decided to retire somewhere in the middle of reading Justice Scalia's opinion in Blakely." I wonder if perhaps AG Ashcroft figured he should jump ship from DOJ before Booker hits the Fanfan.
One month and counting...
Today marks exactly a month since Booker and Fanfan were argued, and the federal sentencing world still awaits an opinion. Obviously, with news of Chief Justice Rehnquist's poor health and a full SCOTUS caseload, it is perhaps unsurprising that the (likely divided) Court has not yet been able to clarify the state and fate of the federal sentencing world after Blakely. However, as suggested here, I think we will be seeing a decision handed down relatively soon.
The recent decision by US District Judge Stewart Dalzell in US v. Cropper, 2004 U.S. Dist. LEXIS 21949 (E.D. Pa. Nov. 2, 2004), highlights why a decision in Booker and Fanfan cannot come soon enough for the Justice Department. Cropper involves the government's effort, after filing a superceding indictment with "Notice of Additional Factors" involving various (non-conviction) criminal history facts, to have the factors submitted to the jury "either in the Government's case-in-chief or in a bifurcated trial." Notably, the defendant "expressed vigorous opposition to submitting any of the factors to the jury at the trial that will begin on November 8, 2004."
Here's an abridged account of Judge Dalzell's explanation for his decision to "decline to submit the sentencing factors to the jury:"
We are especially puzzled at the Government's position in view of what it said to the Supreme Court of the United States in United States v. Booker and United States v. Fanfan, Nos. 04-104 and 04-105, which were argued on October 4, 2004..... [There] the Acting Solicitor General [asserted that] "[r]eplacing the statutory gap in the Guidelines system with a novel system of jury trials for sentence-enhancing facts would be fraught with the same grave difficulties [deemed improper in US v. Jackson, 390 U.S. 570 (1968)]. Indeed, it would require judicial legislation on a far greater scale than the approach rejected in Jackson, because the Guidelines apply in every federal criminal prosecution."
Although we have elsewhere predicted that the Supreme Court will apply Blakely to the Guidelines, see United States v. Leach, 325 F. Supp. 2d 557 (E.D. Pa. 2004), we did not predict the consequences of such a holding beyond Guideline-based enhancements. A review of the transcript of the October 4, 2004 oral argument in Booker and Fanfan reveals that the consequences beyond what we held in Leach are very much up in the air. Until the Supreme Court decides Booker and Fanfan, however, it seems to us not extravagant to take the Government at the word expressed by the Acting Solicitor General in Booker and Fanfan rather than at the word of the local prosecutor here.
After Proposition 66's defeat
Lots of interesting newspaper coverage and analysis this morning of the defeat of Proposition 66, the California ballot initiative to amend the state's Three Strikes Law, with two articles of note in the San Jose Mercury News here and here, and other interesting articles from the Contra Costa Times, the North County Times and the San Mateo Daily Journal.
November 3, 2004
More election/sentencing news of note
With thanks to Howard Bashman at How Appealing for the link, here is a very interesting story about a state district judge in Kansas who won (rather handily) a retention election "despite an effort to oust her because of her sentencing record" organized by a group called The Justice for Children Committee. Here are some of the highlights from a quite interesting article:
The campaign was the first time in county history a judge faced formal opposition heading into a retention election.
The controversy began earlier this year when Martin granted sentences of probation and community service to two men convicted of having sex with an intoxicated 13-year-old girl -- a crime classified as rape under state law. Sentencing guidelines say a rapist should face at least 13 years in prison, but the law also says a judge can give a lesser sentence if there are "substantial and compelling reasons."
The Justice for Children Committee insisted the anti-Martin effort wasn't about one case, though the victim's mother was instrumental in organizing it. The group listed 15 cases where it thought Martin had been too lenient and pointed out she'd been reversed eight times by higher courts.
But [Dan] Watkins, [head of a committee formed to support the judge,] said it helped the judge's case that 16 jurors who heard the rape trials signed on to a list of supporters. Also, many of the cases cited by the judge's critics hinged as much on prosecutors' and victims' input as on Martin's.
Judge Panner sentences in Detwiler
As readers may recall, early last month Senior US District Judge Owen M. Panner declared the federal sentencing guidelines unconstitutional in US v. Detwiler, 2004 WL 2244532 (D. Or. Oct. 5, 2004). Judge Panner's holding was especially noteworthy because it was not based on Blakely, but rather on the conclusion that the "practical consequences of the Feeney Amendment is that, regardless of what it may say on the office door, the Sentencing Commission is now a captive of the Executive Branch." According to Judge Panner, this fact made the federal sentencing system unconstitutional on separation of powers grounds. (More background on the case can be found here, with commentary here and here, and a subsequent development here.)
With thanks to a wonderful reader for the tip, I now see from this article in The Oregonian that Judge Panner has imposed a sentence on defendant Detwiler. Here are interesting excerpts from the newspaper's report on the sentencing:
In his [prior] decision, Panner said he would consider the sentencing guidelines advisory, "not binding mandates." On Monday, Panner used a federal sentencing statute, first enacted in 1984, as the basis for his sentence. That statute allows federal judges to use discretion in handing down sentences, and permits them to consider a range of factors such as the history and character of the defendant and the nature of the offense.
Panner said he believed Detwiler, who has no criminal record, would not commit a similar crime again, and he said he felt the punishment the man has experienced in the form of public humiliation has been severe. Panner said Detwiler's case is unique and is an example of why federal judges don't like federal sentencing rules.
"I do not believe it is appropriate to sentence him to a range of 33 to 41 months," Panner said, disregarding the existing sentencing rules. But, in handing down the 18-month sentence, the judge said the offense deserves punishment.
Detwiler engaged in sexually explicit online chats with someone he thought was a 14-year-old girl before arranging to meet her for sex. The girl turned out to be a federal agent, and Detwiler was arrested after arriving at a downtown MAX station to meet the girl. Authorities say the two chatted online for more than six months.
Detwiler on Monday called his conduct wrong and inappropriate. He said he's been in counseling, which has helped him understand the implication of his actions. "I stand before you now sickened that I said what I did and did what I did," he said, as his family sat behind him in the courtroom.
The power of Gov. Schwarzenegger?
Though when I went to sleep last night it looked light California's Proposition 66 would pass, this morning CNN's numbers report that Proposition 66 failed by a margin of 53% to 47%. Based on all the reports from California, it seems clear that Governor Arnold Schwarzenegger's active and vocal opposition to the measure turned the tide. Also, debate over the potential retroactive application of the Prop. 66's changes to California's Three Strikes law clearly played a role.
One last race to follow and early election thoughts
With the presidential race now being called by some news outlets, my focus is on the tight vote over Proposition 66. Just after 2am eastern, CNN is reporting that the ballot initiative to amend California's tough Three Strikes law is leading 52% to 48% with 40 percent of all precincts reporting. At least in the world of sentencing law and policy, the passage (or defeat) of Proposition 66 will be important news for California's criminal justice system.
More generally, I cannot help but start to speculate about what an apparently strong election night for the Republicans might mean for criminal justice policy. As noted previously here, many states in recent years have taken steps to cut back on harsh mandatory sentences and to expand treatment-centered alternatives to incarceration. And Republicans Governors, from Alabama to Maryland to Michigan to Texas, have been among the leading proponents of this notable modern shift from penal retribution toward rehabilitation.
Of course, at the federal level, there is no serious indication of an interest to shift away from the tough-on-crime policies of the last two decades, and none of the election returns are likely to alleviate concerns that Congress will respond to the expected outcome in Booker and Fanfan with new harsh sentencing legislation. But, like the networks tonight, I continue to be reserved in all my predictions. After all, President Bush has said he wants to appoint more justices like (Blakely author) Justice Scalia; that might at least mean that defendants have extremely broad Sixth Amendment rights.
November 2, 2004
More notable Blakely cases from Minnesota
With thanks to a correspondent from the field, I can report on two more noteworthy Blakely cases from Minnesota's courts of appeals. (Some of the previous reports on Minnesota Blakely caselaw developments can be found here and here.)
In State v. Fairbanks, A04-983 (Minn. Ct. App. Nov. 2, 2004), the court reversed an upward departure sentence over a series of arguments by the government that Blakely should not benefit defendant Fairbanks. The state argued "that Blakely does not apply to Fairbanks’s sentence because (1) the Washington guidelines, unlike Minnesota’s, are legislatively rather than administratively determined; (2) Fairbanks waived his right to be sentenced by a jury when he submitted his case on stipulated evidence; and (3) Fairbanks is not entitled to the benefit of the Blakely holding." The court directly rejected each of these contentions:
The district court violated appellant’s Sixth Amendment right to a jury trial by imposing an upward departure on his kidnapping sentence based on judicially found facts. Fairbanks did not knowingly waive his right to have a jury determine those facts, and he is entitled to relief even though he did not object in the district court on constitutional grounds. Accordingly, we vacate Fairbanks’s sentence and remand for resentencing consistent with this opinion.
In State v. Saue, A04-983 (Minn. Ct. App. Nov. 2, 2004), the court likewise reversed a sentence on Blakely grounds, this time upsetting an "executed sentence of 60 months, which represented an upward dispositional departure and a quintuple upward durational departure from the presumptive stayed sentence of a year and a day." In a lengthy and thoughtful opinion, the Saue court rejects a series of arguments by the state to avoid applying Blakely to Minnesota's guidelines system and concludes that " the imposition of an upward durational departure based on judicial findings here violated appellant’s Sixth Amendment right to a jury trial."
However, in Saue, the court goes on to conclude that "Blakely does not apply to dispositional departures imposed under the Minnesota Sentencing Guidelines" because this determination involves "an open-ended examination of individual offender characteristics ... [that are] based on facts far removed from the offense elements reflected in that verdict." Thus, in sum, the Saue court is holding that the "imposition of an upward durational departure based on judicial findings violated appellant’s Sixth Amendment right to trial by jury [but the] upward dispositional departure did not violate appellant’s jury-trial right."
SCOTUS examining broad questions through a sentencing lens
On the Supreme Court's docket today for oral argument were two cases which, though not directly addressing core issues of sentencing law and policy, arrive at the Court in the context of broader sentencing realities.
In Johnson v. California, No. 03-636, the Court considers an equal protection challenge to California's practice of racially segregating prison inmates for the first sixty days of their stay at a new facility. SCOTUS Blog provides a helpful summary of the case and links to the briefs here.
In Florida v. Nixon, No. 03-931, the Court examines the application of ineffective assistance of counsel doctrines in a death penalty case in which defense counsel apparently made a strategic decision to concede guilt in order to ask for a sentence less than death. Again, SCOTUS Blog provides a helpful summary of this case and links to the briefs here.
Three Strikes meets Blakely/Apprendi
As followers of the blog know from many prior posts (including here and here and here), today is a big day for the future of Three Strikes in California because of voter consideration of Proposition 66, which would narrow the reach of the most expansive and consequential Three Strikes law in the nation. Lots of interesting stories of criminal justice law and policy could be told depending upon the outcome of Proposition 66.
And speaking of interesting, just appearing on Lexis is an interesting Ninth Circuit habeas ruling from last week which explores the possible intersection of Three Strikes and Blakely/Apprendi. In Stevenson v. Lewis, 2004 U.S. App. LEXIS 22511 (9th Cir. Oct. 28, 2004), the defendant claimed Apprendi was transgressed when the state sentencing court denied a motion to strike his prior convictions based on "consideration of facts not proven to a jury beyond a reasonable doubt, such as evidence suggesting that he possessed cocaine for sale and a gun."
Though a clever argument, the Ninth Circuit detailed in Stevenson the reasons why it could not prevail under current law:
Apprendi, however, does not apply to the trial court's discretionary decision ... to strike a prior conviction.... Apprendi carved out a "narrow exception" for sentence enhancements based on "the fact of a prior conviction." The Almendarez-Torres exception was not altered by Blakely....
Because the sentence enhancement was based on Stevenson's four prior convictions, the calculation of his sentence falls within the Almendarez-Torres exception to Apprendi. Furthermore, because the trial judge's consideration of evidence not proved to the jury constituted a discretionary decision not to decrease Stevenson's sentence, Apprendi is inapposite. Finding a defendant to be outside the "spirit" of the Three Strikes law is a mitigating factor in sentencing, rather than a prerequisite to imposing an enhanced sentence. Thus, the trial judge's consideration of facts not proved to a jury did not offend Stevenson's constitutional rights under Apprendi, and habeas relief is unavailable. Accordingly, the district court did not err in dismissing Stevenson's Apprendi claim.
UPDATE: Proving how interestingly diverse these sentencing stories can be from state to state, I also just discovered on Lexis a ruling from Pennsylvania which suggests its Three Strikes law may have Blakely problems. In Commonwealth v. Guilford, 2004 Pa. Super. LEXIS 3920 (Pa. Super. Nov. 1, 2004), a Pennsylvania intermediate appellate court gives us this noteworthy dicta in a footnote:
We note that in light of the decision of the United States Supreme Court in Blakely v. Washington, 124 S. Ct. 2531 (2004), the provision of section 9714(a)(2) of the "three strikes" law, allowing imposition of a life sentence without parole where the sentencing court determines that "25 years of total confinement is insufficient to protect the public safety," is called into serious question.
Blakely Ohio legal news
While Ohio legal wrangling over election law is already making headlines, and occupying the Supreme Court, there is also an interesting Blakely story in today's Cincinnati Post. This article details that four white-collar offenders are hoping a ruling in Booker and Fanfan might pave the road to reduced sentences, and it discusses in some depth the procedural posture of their cases as everyone awaits a Supreme Court ruling.
In honor of election day, I have done some posts on felony disenfranchisement here and here. For more on this topic, check out this Legal Affairs on-going Debate Club event with Marc Mauer of The Sentencing Project facing off against Roger Clegg on the question "Should ex-felons be allowed to vote?".
And, for all things election law, check out Election Law @ Moritz.
November 1, 2004
Developments around the blogsphere
Though the political blogsphere may be the place to be over the next few days, the legal blogsphere continues to grow and develop in interesting ways. I previously spotlighted the new INCourts here, and today at that site here are interesting Indiana Blakely-related documents that the Marion County Public Defender Agency is soon to be filing in state cases.
Meanwhile, attorney Lawrence Taylor has developed a distinctive new site entitled DUIblog: Bad Drunk Driving Laws and the New Prohibition. He explains that this site emanates from his concerns about "the systematic denial of constitutional rights in the politically unpopular area of drunk driving offenses — and the broader impact of these laws and procedures as precedent generally."
Last but not least, please welcome two new members of the Law Professor Blogs Network, White Collar Crime Prof Blog, edited by Professors Peter Henning and Ellen Podgor, and CrimProf Blog, edited by Professors Jack Chin and Mark Godsey. These blogs, like others in uber-blogger Professor Paul Caron's Law Professor Blogs Network, seek to provide regularly-updated permanent resources and links, and daily news and information of interest to professors who write and teach in specific fields.
Relatedly, you may have noticed that one feature of my affiliation with the Law Professor Blogs Network is the recent addition of a "network advertisement" in the right side-bar. Paul Caron has arranged for these ads (which will change weekly) to help support the fledgling network and also to provide an additional information resource for professors.
Blakely triple play from the First Circuit
Perhaps literally as I was writing this post noting that federal circuit courts have been finding ways to affirm previously-imposed sentences even when Blakely issues were implicated, the First Circuit today affirmed three sentences over Blakely objections. Though the facts and legal specifics vary in US v. Del Rosario, 2004 WL 2426239 (1st Cir. Nov. 01, 2004); US v. Martinez Bermudez, 2004 WL 2426246 (1st Cir. Nov. 01, 2004); US v. Stearns, 2004 WL 2426261 (1st Cir. Nov. 01, 2004), in all three cases the First Circuit continues its trend of using waiver/forfeiture and plain error doctrines to reject Blakely claims raised only on appeal.
Good enough for Blakely purposes
Last month in this post, I noted state appellate decisions which sought to minimize the impact of Blakely by finding ways to affirm previously-imposed sentences even when Blakely issues were implicated. A number of federal circuit courts have, unsurprisingly, been making similar efforts, as evidenced by decisions from the coasts late last week.
I previously noted here the Ninth Circuit's decision in US v. Mayfield, 2004 WL 2415039 (9th Cir. Oct. 29, 2004), affirming a lengthy sentence in a drug case despite the imposition of a two-level enhancement by the sentencing judge pre-Blakely. A different basis for affirmance post-Blakely can be found in the Second Circuit's decision in US v. Monsalve, 2004 WL 2417800 (2d Cir. Oct. 29, 2004), which held that the "constitutional requirement of a sentence based solely on facts admitted by the defendant set forth in Blakely has been satisfied" when the defendant admitted in her plea agreement the drug quantity and type involved in her offense. The case becomes noteworthy because the Second Circuit goes on to explain:
Defendant's denial of knowing drug type or quantity during her plea colloquy does not negate the admissions Defendant made in her plea. Indeed, sentencing based on such conflicting statements has long been held constitutional, as a criminal defendant may enter a guilty plea and receive a sentence even while maintaining her innocence. North Carolina v. Alford, 400 U.S. 25, 37-38 (1970) (an express admission of guilt, in addition to a properly accepted guilty plea, "is not a constitutional requisite to the imposition of criminal penalty"). Therefore, an admission in a plea agreement, even if later controverted in a plea colloquy, satisfies the constitutional requirements set forth in Blakely.
A week's worth of Blakely news stories
With election news and other events taking over the headlines, there have been relatively few Blakely news stories of late (though this will change, of course, when the Supreme Court hands down Booker and Fanfan). However, over the course of a week, the number of Blakely-related newspaper stories add up. Channeling Howard Bashman (who has some Proposition 66 headlines here), I am going to set out these Blakely stories' headlines and links in a rapid-fire list from oldest to newest:
The Honolulu Star-Bulletin reports "Ruling could set Mirikitani free"; the Pittsburgh Post Gazette reports "Convicted molester awarded new lawyer, sentencing hearing"; the Associated Press reports "Enron Trial May Get a Second Phase" and "Officials Answer Restated Lincoln Park Charges"; the Metropolitan News-Enterprise reports "Ninth Circuit Upholds 22-Year Sentence Imposed on Cocaine Dealer" (which reports on a ruling discussed here).
Felony disenfranchisement in the swing states
Following up this recent post on the important issue of felony disenfranchisement, this distressing Miami Herald article reminded me of the notable contrast in the treatment of the felons' right to vote in the swing states of Ohio and Florida.
As discussed more fully here, though the Ohio Constitution expressly authorizes the Ohio General Assembly "to exclude from the privilege of voting, or of being eligible to office, any person convicted of a felony," the Ohio General Assembly has chosen to prohibit only incarcerated felons from voting; in Ohio offenders on probation, paroled felons, and all ex-felons are permitted to vote, and the restoration of the franchise occurs automatically once a felon is paroled, pardoned, or granted judicial release. See Ohio Revised Code § 2961.01. By disenfranchising felons only while they are imprisoned, Ohio maintains one of the least restrictive felon disenfranchisement policies in the nation (although Vermont and Maine permit even incarcerated felons to vote as noted in this NY Times article today). See generally The Sentencing Project, Felony Disenfranchisement Laws in the United States (2004).
In sharp contrast, as this this Miami Herald article details, Florida has the most restrictive felony disenfranchisement laws in the nation and more than one-half million Floridians will not be able to vote because of these laws. And, as the Herald article explains, for ex-felons in Florida "the hope of having their civil rights restored — including the right to vote — has been frustrated by an overwhelmed and troubled clemency system." After reading the Herald article, I could not help but wonder whether at least some of our monies and energies spent trying to spread democracy around the world might be better spent trying to improve democracy at home.
Blakely analysis and insights for ALI's sentencing project
As many readers may know, the American Law Institute has been working for the last few years, under the leadership of Professor Kevin R. Reitz as Reporter, on revising the (long-out-of-date) sentencing provisions of the Model Penal Code. (You can read here about the ALI's basic (pre-Blakely) plans for revision, and note here all the amazing people involved in the project. UPDATE: Kevin has noted that the "Plan for Revision" (linked above) was itself updated and revised in the April 2003 "Model Penal Code Sentencing: Report" presented at the ALI's annual meeting and available here.)
Needless to say, Blakely has disrupted the on-going work of the ALI, although the need for model sentencing legislation really becomes even more acute in the wake of Blakely. A few weeks ago, Kevin Reitz prepared a "Report to the Council" for the ALI as an early discussion paper to help explain the impact and import of Blakely and to help identify particularly the problems that Blakely may create for effective reform in state sentencing systems.
This discussion paper, which Kevin has graciously made available for posting here, does a wonderful job explaining the many open and interesting questions that the Blakely line of cases pose (some of which are also noted in my "Conceptualizing Blakely" article here). The paper also effectively canvasses legislative options in the wake of Blakely (and the pending Booker and Fanfan), while also making a host of interesting and important analytical observations along the way.
Put simply, this paper is a must read for those thinking hard about the post-Blakely future of sentencing reforms.
The new phone books — I mean guidelines — are here!
You have to be a fan of the Steve Martin classic "The Jerk" to fully appreciate the reference to one of my favorite movie quotes/sequences in the title of this post. However, you probably only need to have passing familiarity with the girth of the federal sentencing guidelines to understand a phone book analogy.
In any event, jokes aside, November 1, 2004 is the day the latest, greatest version of Federal Sentencing Guidelines Manual and Appendices become effective. Hot off the virtual presses, you can access various forms of the 2004 Federal Sentencing Guidelines Manual here. In addition, you can read all 154 pages of the "Reader-friendly" version of the 2004 Guideline Amendments here. I heartily encourage readers to use the comments to highlight any of the dozen 2004 amendments they believe are particularly important or noteworthy.
Of course, with the Booker and Fanfan iceberg approaching quickly, these pre-Blakely amendments may be just a slight rearranging of the deck chairs on the guidelines Titanic. But they still merit attention, if only out of respect for all the work that the US Sentencing Commission obviously put into these amendments.
No Booker/Fanfan (or CJ Rehnquist) today
As noted in this November events calender, I had heard a few predictions that the Supreme Court might deliver its opinion in Booker and Fanfan as early as today. But my sources are reporting that no opinion is expected from the Court today (or perhaps any time this week). As previously discussed here and elsewhere, a case due to be argued next Monday, Shepard v. US, raises Blakely-type issues; November 8 is now the next highlighted date on my calender for a possible Booker and Fanfan decision.
It is hard not to speculate about how Chief Justice Rehnquist's health might be impacting the Court's work on this case and other matters. As reported by SCOTUS Blog here and by CNN here, a press release from the Supreme Court details that the Chief is not back at the Supreme Court today, but he is working from home while taking "radiation and chemotherapy treatments on an outpatient basis."
October 31, 2004
Conceptualizing Blakely (again)
In this revised draft (available in two formats below), I have filled out my explanation and justification for understanding the jury trial right informed by an offense/offender distinction. I have also supplemented and added footnotes, including one footnote near the end which interestingly notes that in Mitchell v. United States, 526 U.S. 314, 330 (1999), the Court (in an opinion by Justice Kennedy) seemed to embrace something akin to an offense/offender distinction when discussing the reach of the Fifth Amendment’s right against self-incrimination at sentencing.
A focus on the franchise
Only now a matter of hours away from election day seems like a good time to spotlight again the important sentencing law and policy issue of felon disenfranchisement. I continue to find it remarkable, and remarkably depressing, that an estimated 5,000,000 Americans currently lack the right to vote as a result of a felony conviction. Sadly, of this number, 1.4 million are African American men, and an estimated 1.7 million disenfranchised persons are ex-offenders who have fully completed their sentences.
The Sentencing Project has a collection of links to major felon disenfranchisement media stories here, as well as a wealth of additional materials here. Similarly, Right to Vote provides additional information as part of its campaign to end felony disenfranchisement. And, as I have noted before, my own OSU Moritz College of Law has this great site covering all sorts of election law issues, and here you can find some basic and broad coverage (and lots of links) on the topic of felon disenfranchisement.
A November to remember
As if the post-Blakely world of sentencing has not been exciting enough, looking ahead there are reason to believe (and fear?) that November will be the best sentencing month ever. (Perhaps you can tell from my description that I am a big fan of Richard Scarry and all of his best ever books.)
Hyperbole aside, let me quickly detail just a few red letter dates in the month ahead:
Monday, November 1: A date predicted by some for the handing down of Booker and Fanfan.
Tuesday, November 2: An election which will likely impact, in many large and small ways, the personnel making sentencing law and policy decisions in the state and federal systems. In addition, Californians will vote on Proposition 66, the initiative to amend California's Three Strikes Law (recently discussed here).
Monday, November 8: oral argument before the US Supreme Court in Shepard v. US, a case (discussed here) which might provide the Court a chance to speak to the continued validity and scope of the Appendi/Blakely "prior conviction" exception.
Tuesday/Wednesday, November 9-10: The Indiana Supreme Court and Washington Supreme Court hear arguments in major Blakely cases.
Tuesday, November 16: Judge Cassell's scheduled "sentencing meeting" in US v. Angelos, the mandatory minimum sentencing case (discussed here and here) in which Judge Cassell asked for briefing on constitutional issues.
Tuesday/Wednesday, November 16-17: As noted here, the US Sentencing Commission plans for a public hearing which is likely to discuss Blakely (and Booker and Fanfan?). More details when available.
Before the end of November: I predict Booker and Fanfan will be handed down and the third Federal Sentencing Reporter issue on Blakely will go to press. (Details on earlier FSR Blakely issues can be found here and here.)
For still more on Blakely
Though described as a "blog for discussion of the Indiana courts," INCourts has been providing heavy-duty and wide-ranging Blakely coverage to the exclusion of most everything else lately. Michael does provide especially thorough coverage of Blakely in Indiana's courts (examples here and here and here), but he also is effectively covering the development of proposals for legislative revisions to Indiana's sentencing laws (examples here and here and here), and also some Blakely development outside Indiana (examples here and here and here).