November 15, 2004
The AG and the death penalty
Professor Mark Godsey over at CrimProf Blog posts here about AG nominee Alberto Gonzales' clemency memos (which I previously discussed here). Also, last week, Phillip Carter wrote on this issue for Slate here and the occasional newspaper article noted the issue as evidenced here.
Meanwhile, over at ACSBlog, Josh Kobrin has this thoughtful post about out-going AG John Ashcroft's record on the death penalty.
Collection of USSC written testimony
With many thanks to the participants for sending their efforts my way, I can now post a sizeable collection of the written testimony submitted by persons scheduled to testify at the US Sentencing Commission Blakely hearing over the next two days. (The hearing details are here and here.) Specifically, I have testimony from:
Stephanos Bibas, Associate Professor, The University of Iowa College of Law
Douglas A. Berman, Professor, Michael E. Moritz College of Law, The Ohio State University
Mark W. Osler, Associate Professor, Baylor Law School
David M. Porter, Assistant Federal Defender, Federal Defender’s Office, Sacramento, CA
Paul Rosenzweig, Senior Legal Research Fellow, The Heritage Foundation, Adjunct Professor, George Mason University School of Law
More for the voracious SL&P reader
I promised lots of reading for the Blakely addicted before I head to DC for the US Sentencing Commission hearing, and thanks to my wonderful research assistant I can now really deliver on that promise.
Continuing to display his incredible cut-and-paste talents, my RA has finished the latest printer-friendly Word version (with imbedded links and a TOC) of the text of this blog covering the last six weeks of posting. It can be downloaded below, while prior installments organized by date can be found here and here (and a slightly dated document with the state Blakely entries can be found here).
SCOTUS reversal of death sentence
Though it appears that we have at least two more weeks to wait for Booker and Fanfan (details here), the Supreme Court made a little sentencing news today by issuing a per curiam opinion reversing on Penry II grounds a Texas death sentence in Smith v. Texas (available here). Those of you who know too much about capital litigation likely do not need me to explain what a reversal on Penry II grounds means; anyone needing more explanation can get a brief account of the Smith case here from the SCOTUS Blog and a full account of the decision from this AP report.
Highlights from the Stanford Blakely conference
I will likely be off-line for big blocks of time tomorrow and Wednesday as I travel to DC to participate in the US Sentencing Commission's big hearing to consider Blakely issues. The agenda for the hearings is now on-line here, and later today I hope to post my written testimony and the testimony that I have received from some of the other panelists.
Before I leave I will be providing a lot of reading material for any and all Blakely addicts. In addition to a wealth of USSC testimony I hope to post later today, I now have a terrific "highlights" document (available for downloading below) prepared by Professor Bob Weisberg and other folks involved in the great event last month at Stanford Law School, entitled "The Future of American Sentencing: A National Roundtable on Blakely." (Background on the event can be found here and here.) The Federal Sentencing Reporter plans to publish this version of the proceedings of the event, which is a condensed and edited transcript of the six "roundtable" discussion sessions that were conducted at Stanford.
Examining the examining of Ohio's death penalty
As detailed here, an unexpected coalition of Republicans and Democrats joined together in the Ohio House last week to approve a bill requiring an in-depth study Ohio's capital punishment system. In today's Akron Beacon Journal, this thoughtful article explores various explanations for this unexpected development and suggests it "reflected both a national debate over moral values as well as old-fashioned legislative maneuvering."
I have not heard any additional word about the likelihood of this bill being passed by the Ohio Senate, but I hope the good idea of an Ohio death penalty study does not just fade away. As detailed in this recent government report on the state of capital punishment in the United States (discussed previously here), Ohio is number two behind only Texas in the number of executions in 2004, and Ohio's death row is the fifth largest in the nation. Taking a closer look at Ohio's capital laws and practices seems quite sensible as the state continues to make the death penalty an integral component of its criminal justice strategies.
Mark your Blakely calenders
Though, as noted here, it appears we still have a wait for Booker and Fanfan, those interested in contemplating the future of the federal sentencing system have no shortage of exciting events this week.
For example, in New York on Monday, Nov. 15, 2004 at 6 pm, the Jacob Burns Ethics Center of the Benjamin N. Cardozo School of Law/Yeshiva University is having a program entitled "An End to the Federal Sentencing Guidelines?: 20 Years of Federal Sentencing Reform at Issue Before the United States Supreme Court." This program, which will be moderated by Adam S. Lurie, is scheduled to include criminal defense attorney Josh Dratel, former US District Judge John S. Martin, former Assistant Attorney General James K. Robinson, and Yale Law School Professor Kate Stith. More details concerning this event can be found here.
Then, in Philadelphia on Tuesday, Nov. 16, 2004 at 5 pm, a program entitled "Crime and Punishment: Federal Sentencing Guidelines" is the co-production of Justice Talking and the National Constitution Center. The guests for the event are Christopher Wray, Assistant Attorney General for the Criminal Division, and former US District Judge John S. Martin. More details concerning this event can be found here and here.
And, of course, in Washington DC on Nov. 16-17, the US Sentencing Commission is holding public hearings to discuss Blakely and the future of federal sentencing. I hope to be able to post the full details of this event, along with some of the written testimony, by late Monday before I head to these hearings myself.
November 14, 2004
Still more state Blakely rulings of note
With Booker and Fanfan apparently still weeks away, we fortunately have more than enough significant state developments to keep Blakely fans busy. Last week, for example, major Blakely decisions came from intermediate appellate courts in Arizona, Indiana, Oregon, and Tennesse (and, of course, California also contributed yet another dozen or so appellate court rulings involving Blakely issues).
Because I am busy trying to write my testimony for the US Sentencing Commission's hearings this week, I can only provided a cursory overview of these state developments:
- In Arizona v. Resendis-Felix, 2004 Ariz. App. LEXIS 165 (Ariz. Ct. App. Nov. 10, 2004), the court reverses and remands on Blakely grounds, and there is a very interesting dispute between the majority opinion and a concurrence concerning the nature and review of a Blakely error.
- In Traylor v. State, 2004 Ind. App. LEXIS 2229 (Ind. Ct. App. Nov. 10, 2004), the court reverses an aggravated sentence on Blakely grounds; the highlights are here courtesy of INCourts.
- In State v. Fuerte-Coria, 2004 Ore. App. LEXIS 1462 (Ore. Ct. App. Nov. 10, 2004), the court refuses to find (an unpreserved) Blakely error because it is not clear Blakely extends to the imposition of consecutive sentences on the basis of judicial findings.
- In State v. Pierce, 2004 Tenn. Crim. App. LEXIS 994 (Tenn. Crim. App. Nov. 2004), the court reduced one part of the defendant's sentence on Blakely grounds, but upheld the imposition of consecutive sentences over a Blakely objection.
The decline of death?
This CNN.com article provides, under the headline "Death sentences at 30-year low," the highlights of the latest official accounting by the Bureau of Justice Statistics of the state of capital punishment in the United States. The full report can be accessed here, and it provides a wealth of information about the laws and practices of the death penalty in the United States.
As you will see in the full report, even though the national number of executions and death sentences imposed continues to decline, the story of capital punishment remains a regional story. The great majority of death sentences and executions take place in the south; interestingly, in 2003 the west had no executions but a fair number of death sentences, while the midwest had a relatively sizeable number of executions but relatively fewer death sentences.
Responding to Blakely in North Carolina
This article in the New Bern Sun Journal from North Carolina reports that a subcommittee of the North Carolina Sentencing and Policy Advisory Commission "has recommended that aggravating factors and some issues related to prior records be submitted to a jury to determine if they exist."
In the article, John Madler, the associate director of the Commission, highlighted why this recommended modification of N.C. sentencing practice, and more generally "the Blakely earthquake," are not that disruptive in North Carolina:
The change would likely affect a comparatively small number of cases, he said. "Roughly 7 percent of the people who go to prison have an aggravated sentence," Madler said....
The U.S. Supreme Court's ruling would likely have less of an effect in North Carolina than in some other states because factors such as previous records are already taken into account in the law and are not left up to a judge to decide, Madler said.
"It's not that big of a deal in North Carolina, compared to other states," Madler said. "It's just a piece of our process, rather than a whole structure change."