November 2, 2004
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).