Sentencing Law and Policy

Blakely-ization plans in North Carolina

Following up on this post about state Blakely developments, a lawyer was kind enough to forward to me a recommendation to the North Carolina legislature from the NC Sentencing Commission's Blakely Subcommittee concerning how the state ought to respond to Blakely.  You can download the two-page "draft final report" below, and I was amazed and impressed with how easy the report makes Blakely-ization sound.

Here's how the proposed North Carolina Blakely reforms were summarized for me:

The recommendation is to keep the three range grid in place (there had been talk of blending the aggravated range and presumptive range into one to solve the problem).  Aggravators set out in the statute are incorporated by reference into indictments, but "nonstatutory aggravators" must be pled. 

A separate jury phase is allowed but not mandated.  It would be up to the judge whether to bifurcate the guilt/innocence and sentencing stage. 

An amendment to the recommendation, not included in the information provided, requires the state to give the defense notice ten days before trial of the aggravators that the state contends exist.

I have tried cases for thirty years. All in all, I think this will be workable.

Download nc_sent_commission_proposals.doc

SCOTUS still struggling: the wait for Booker and Fanfan continues

Yet again, no news on the Supreme Court sentencing front: the Court did not hand down its decision in Booker and Fanfan today.  Sorry for all the false alarms; I am as disappointed and surprised as anyone that the Court has completed now seven decisions before being able to speak to the state of federal sentencing.  I continue to speculate that the Court is really struggling with the second severability issue (some background here).   

According to the SCOTUSblog folks here and Howard Bashman here, the only other possible date for the decision this year is Monday, December 13.  And, as noted before, perhaps even a longer wait is in store for us.  Whenever the decision comes out, I trust it will be worth the wait.

In the meantime, there are lots of other state and federal sentencing stories to share and discuss (and now the mysterious Milbarge, the "Weird Al" Yankovic for the sentencing world, has more time to write more great Blakely and Booker songs).

'twas the morning before Booker?

Well, here we go again, again.  The Supreme Court has said it will be issuing an opinion today, and so (now for the fourth time) I am getting prepared for a decision in Booker and Fanfan. (Prior posts in preparation include Booker and Fanfan pre-reading guide and Gearing up for Booker and Fanfan.)

Credit for this post's title goes to the mysterious Milbarge of the blog Begging the Question.  Seizing upon my comment here that I would award a complete set of FSR Blakely issues (Issues 16.5, 17.1 and 17.2) for appropriate sentencing jocularity, Milbarge has penned 'Twas the Night Before Booker.  Here is the opening refrain from Milbarge's brilliant sentencing lyrics to put everyone in the mood for what could be a very big day:

'Twas the night before Booker, and all through the prison,
Inmates packed up the cells that they wouldn't be missing.
The lawbooks and transcripts were bound up with care,
In hopes that the verdict soon would be there.

Rockefeller reform a (compromise) reality

Yesterday I pondered whether we might soon see movement on mandatories, and the news from New York came quick.  As this New York Times article explains:

After years of false starts, state lawmakers voted Tuesday evening to reduce the steep mandatory prison sentences given to people convicted of drug crimes in New York State, sanctions considered among the most severe in the nation.

The push to soften the so-called Rockefeller drug laws came after a nearly decade-long campaign to ease the drug penalties instituted in the 1970's that put some low-level first-time drug offenders behind bars for sentences ranging from 15 years to life.

Under the changes passed Tuesday, which Gov. George E. Pataki said he would sign, the sentence for those same offenders would be reduced to 8 to 20 years in prison. The law will allow more than 400 inmates serving lengthy prison terms on those top counts to apply to judges to get out of jail early.

Quotes throughout the Times article, as well as additional effective articles from other New York newspapers here and here and here and here, highlight that the changes are the product of a legislative compromise that has disappointed many who were pushing for broader drug sentencing reform.  As noted in the lead of this Albany Times Union article:

Depending on who you talked to Tuesday, state lawmakers either broke a long-standing logjam and took real steps to reform the Rockefeller Drug Laws, or merely tinkered with the harsh laws and frittered away any chance of future negotiations.

TalkLeft here provides more highlights, and more concerns, about the Rockefeller reform outcome in Albany.  Ever the optimist, I am inclined to celebrate an important (and overdue) step forward, and hope it is only the first step toward continued rethinking of drug sentencing policies and practices both in New York and throughout the nation.

Deep thoughts about shallow conceptions of equality

Sentencing guru Professor Marc Miller (who is also one of my casebook co-authors and a great friend) has posted on SSRN a draft of his latest sentencing article, entitled "Sentencing Equality Pathology."  The first line of Marc's abstract spotlights both the article's theme and its great importance: "This short article critiques the highly constrained notions of equality in modern sentencing reform."

The article terrifically details (in under 20 pages!) how stunted and underdeveloped — and yet dominant — the concepts of "equality" and "disparity" have been in the federal sentencing reform dialogue, and this makes the article a must-read for everyone contemplating the post-Blakely sentencing landscape.  Though Marc's article is focused on pre-Blakely developments and perspectives, I view the Blakely decision in part as a (long-overdue) statement by the Supreme Court that some other values — such as the jury trial right and a commitment to adversarial justice — need to be balanced with, or perhaps integrated into, our modern quest to achieve sentencing equality.

Here are more highlights from the article's abstract:

While Congress made the reduction of unwarranted sentencing disparity a primary goal of the Sentencing Reform Act of 1984, the past two decades have not produced nuanced conceptions of disparity and equality in the federal system. The language of formal equality has continued to dominate the federal discussion of sentencing. The focus on apparent outcome equality in sentencing has become a pathology of federal sentencing reform for the past twenty years. The narrow focus of judges and the United States Sentencing Commission on achieving sentences that appear similar for offenders who appear similar — in other words, the absence of any context beyond formal outcome equality — has allowed Congress to shape federal sentences into a ready political tool....

Building on work by Professor Martha Fineman on the contextual nature of equality in other areas, this article suggests that fuller conceptions of equality in sentencing must reject narrow time-framing, account for the multiple screening and sorting functions of the criminal process (including sorting within and among criminal justice systems), attend to the justifications for punishment and evidence in support or against those justifications, and consider sentencing within the broader context of the causes and solutions to the social problem of crime. Functionally these goals can be advanced through continuing efforts at defining ideas and through comparative study of different places (including state and non-U.S. systems) and different times.

Seeking help on Blakely in the states

I have regularly highlighted the important and intriguing Blakely work being done in the state appellate courts — e.g.,November posts here and here and here and here and here detailed the breath and scope some of the major state Blakely rulings from last month alone.  But, with so many state issues and opinions (and with all the time I am spending crying Wolf about the coming of Booker and Fanfan), I have of late been unable to track effectively the still developing and always evolving story of Blakely in the state courts. 

I hope readers will continue to spotlight for me especially compelling and important state Blakely rulings in the days and weeks ahead.   I would be especially grateful to get information and resources from anyone trying to track systematically  state court Blakely rulings.  As I noted here last week, a number of state supreme courts have Blakely cases in front of them and might be expecting (or at least hoping) additional guidance will come from Booker and Fanfan; it will be interesting to see if one consequence of the (eventual) ruling in Booker and Fanfan is a rapid-fire series of major state supreme court rulings.

And, of course, state courts are only one of many state institutions forced to cope with the Blakely earthquake.  I know the Minnesota Sentencing Guidelines Commission is having hearings in the coming days "to consider proposed modifications to the sentencing guidelines and commentary resulting from the recent U.S. Supreme Court decision Blakely v. Washington" (details here).  And newspaper articles noted in posts here and here document that other state commissions and legislatures are, at a seemingly cautious pace, working through Blakely concerns.  I highly encourage readers also to report on state legislative or policy developments on all state Blakely issues in the days and weeks ahead.

As I have noted before, the federal sentencing story will surely grab all the headlines in the wake of a decision in Booker and Fanfan.  But I find the state Blakely story engaging, critically important, and often far more encouraging than the federal story.

More on Pablon-Cruz

With thank to a favorite reader for the link, the New York Times today has this article discussing the Second Circuit's remarkable recent ruling in US v. Pabon-Cruz, No. 03-1457 (2d Cir. Dec. 3, 2004).  As noted in my post here and in Howard Bashman's coverage here, the Second Circuit in Pablon-Cruz determined that a (now amended) federal sentencing statute provides that a sentencing judge has authority in a child pornography case to impose a fine or a 10-year (or longer) imprisonment term, but nothing in between.

The full opinion in Pablon-Cruz merits attention not only for its thoughtful explanation of this ruling, but also because it reviews the efforts of US District Judge Gerard Lynch (also a likely nominee for my imaginary Sentencing Judges Hall of Fame) to inform juror about the sentencing consequences of a conviction.  (The Second Circuit last year disallowed Judge Lynch's proposed jury instruction in a mandamus action brought by the government, and it reaffirms that decision in this latest Pablon-Cruz ruling.) The NY Times article merits a full read because it provides more of the factual and social stories surrounding this bizarre and sad case.

Preparing to cover Booker and Fanfan in FSR

As I have highlighted (repeatedly) in this space, the Federal Sentencing Reporter has produced three rapid-fire issues covering Blakely since June.  FSR hopes to be able to provide similar coverage of Booker and Fanfan (whenever that decision arrives) by continuing with a flexible production schedule as the dust continues to settle in the aftermath of the Blakely earthquake.  However, because the pages of future issues are already filing fast, I encourage prospective authors to let me know ASAP about any planned article.

A full-page version of front cover (with final page numbers) of the latest FSR issue, Volume 17, Number 2 (Dec. 2004), entitled "Further Implications of Blakely" can be downloaded below.  I have also made available again for downloading a finalized version of my article "Conceptualizing Blakely" which also has final page numbers:

Download fsr_172_front_cover.pdf

Download final_conceptualizing_blakely.pdf

While I am in shameless self-promotion mode, let me note again that details about the two previous Blakely issues are here and here, and that FSR can be ordered on-line here and accessed electronically here.   For true sentencing geeks like me, an FSR subscription might even make a nice Hanukkah or Christmas gift.  (Okay, I know I am going to lose all my credibility with that last claim.)

Compelling reading from the drug war front

In July, US District Judge Gregory Presnell made a strong case for inclusion in my imaginary Sentencing Judges Hall of Fame through his opinion in US v. King, where Judge Presnell not only found the federal sentencing guidelines unconstitutional in light of Blakely, but also identified the illogic in the government's tortured severability claims (background here).  Judge Presnell followed up King with other noteworthy rulings in recent months (accessible here and here) that spotlight injustices in the current federal sentencing system.  And, last week, Judge Presnell in US v. Williams, No. 6:04-cr-69-Orl-31KRS (M.D. Fla. Nov. 30, 2004), once again detailed how ugly the "war on drugs" can appear on the judicial front lines.

Williams, a to-the-point, four-page opinion, can be downloaded below and it is a must-read for anyone concerned about mandatory drug sentencing or cooperation credit or the human realities of our criminal justice system.  Here are some highlights:

Torrey Williams was caught in a sting operation selling 12.3 grams of crack cocaine to an undercover law enforcement officer for a total of $500.00.... [T]he government seeks to impose a sentence of 188-235 months [for this] 24-year-old unemployed African-American male [who] has been convicted of two prior drug-related felonies both involving relatively minor amounts of crack cocaine.

Defendant has metastic medullary thyroid cancer [and his] prognosis is uncertain; however his doctor does note that this form of cancer portends a poorer prognosis than some of the other forms of thyroid cancer. [FOOTNOTE: recent publicity concerning our Chief Justice’s thyroid cancer [suggests] the three-year survival rate for this type of cancer is 20%.] Indeed, the cancer appears to have metastasized into his lungs [and] Defendant will require adjunctive therapy (radiation and chemotherapy) as well as possible additional surgery in the future.

As a result of this medical condition, Defendant moves for a downward departure... [which the law suggests] is appropriate in only "extraordinary circumstances." ... Therefore, the question becomes, is this an "extraordinary circumstance"?  Many people sentenced by this Court are incarcerated with physical or medical disabilities, and the Court has always been assured that the Bureau of Prisons will provide all reasonable and necessary medical care to its inmates. Indeed, it may well be that Defendant would receive better health care as a ward of the federal government than he would as a poor, uneducated and unemployed citizen of this state.

A guideline sentence in this case starkly illustrates the problem of attempting to fit the human experience into a discrete mathematical matrix.  It just can’t be done, and this Court cannot in good conscience do it, because it offends the Court’s concept of justice.... [Departing on th basis of extraordinary physical impairment and overstated criminal history] Defendant will, therefore, be sentenced to a term of 70 months incarceration....

In the meantime, the "war on drugs" goes on. Others will undoubtedly replace Torrey Williams in the chain of drug commerce, and the Courts will continue to incarcerate them for long periods at alarming rates.

Download presnell_williams_sentencing_memo.pdf

Movement on mandatories?

There are this morning interesting discussions of mandatory minimum sentencing in federal and state systems.

On the federal front, there is this potent op-ed in today's Washington Post entitled "Mandatory Madness" authored by Professor Barry Scheck, who is currently serving as the president of the National Association of Criminal Defense Lawyers.  (Thanks to CrimProf Blog for the tip here.) The piece calls upon Congress to use the legislative moment that Booker and Fanfan may create "to rectify an unfair and senseless disgrace that it should have confronted years ago: mandatory minimum sentences."  Stressing the facts of the Angelos case (background here, commentary here and here), the recommendations of the ABA's Kennedy Commission (available here), and the costs of incarcerating low-level, small-time and nonviolent offenders, Professor Scheck concludes:

There is a developing consensus among judges, prosecutors and the defense bar that something must be done to restore sanity to federal sentencing. Let's hope it infiltrates the Capitol. Congress and the Sentencing Commission should create a blue-ribbon panel to study constitutional and human issues raised in the sentencing cases now before the Supreme Court. The panel should look at the good and the bad of what developed from the last effort at sentencing reform, 20 years ago. We can make the system better.

On the state front, TalkLeft notes here that there is talk once again in New York about reforming the state's Rockefeller drug laws.  As TalkLeft notes, a key advocate pushing for reform is Manhattan District Attorney Robert Morgenthau, who, according to this New York Post article, is advocating a specific proposal that would "toughen sentences for violent and repeat drug felons while channeling low-level dealers away from the current mandatory prison sentences and into treatment."  This recent Newday article provides more details on the legislative debate over drug sentencing reform, which has been raging in Albany for quite some time (as detailed here in FAMM's coverage).

More background on New York's Rockefeller drug laws can be found here from the Drug Policy Alliance, and a compelling (and lengthy) report critical of these laws, produced by the group Physicians for Human Rights and entitled "Unjust and Counterproductive: New York’s Rockefeller Drug Laws," can be accessed here (with highlights here).

At least one more day to wait for Booker and Fanfan

The Supreme Court did not hand down its decision in Booker and Fanfan today, although I have now heard from a large group of insightful folks predicting that tomorrow will (finally) bring the decision.  As knowledgeable court-watchers detailed for me, the Court heard 11 arguments in the first sitting and has already issued four (relatively "easy") opinions from that sitting (as well as two other opinions). 

Thus, it seems the smart money is on an opinion tomorrow.  At this point, I will believe it when I see it. Fortunately, there is a lot of noteworthy sentencing law and policy development to keep us busy at least for the next 24 hours.  Noticing some sentencing buzz around the blogsphere this morning, I will have posts soon about mandatory minimum sentencing and Blakely in the states.

Here we go again

As previously reported here, the Supreme Court has announced that one or more opinions from argued cases will be issued today and tomorrow.  Thus, I am preparing yet again for a decision in Booker and Fanfan.  (I figure if I keep predicting the decision is coming, eventually I have to be right.) 

Here are a few recent posts which I think are useful reading if a decision is indeed forthcoming:

• Booker and Fanfan pre-reading guide
• Gearing up for Booker and Fanfan
• Are federal prisons gearing up for Booker and Fanfan?
• How and how fast might Congress react to Booker and Fanfan?
• Will federal judges engage in the policy debate after Booker and Fanfan?

Additonal posts of note and other background materials on Blakely and Booker and Fanfan can also be found on this Blakely Basics page.  And a wealth of additional information can be accessed through the various Booker/Fanfan and Blakely page links in the right side-bar.

Compelling capital cases nationwide

The media provided lots of coverage of the Miller-El case argued before the Supreme Court yesterday, and Linda Greenhouse's NY Times account here includes all the highlights.  The Texas case now in front of the Supreme Court for the second time (details here and here) is about jury selection more than sentencing, though it is a stark reminder of how, as we have seen throughout American history, racial dynamics infect the administration of capital punishment.  Reading tea leaves, it was interesting that, according to the Times account, Justice Breyer said jokingly during the Miller-El argument that "It might be in my interest if people followed dissents more often."  Perhaps this reveals Justice Breyer has Blakely on the brain.

In other interesting capital news, it now appears virtually certain that next month Connecticut will have its first execution in the modern death penalty era.  As detailed in this news story, Connecticut Governor M. Jodi Rell stated yesterday that she will not issue a reprieve for serial killer Michael Ross, who is scheduled to be executed in January.  In her public statement, which you can read here, Governor Rell also said she would veto any legislation that repeals the state's death penalty.

Replaying a common pattern for the first execution in a state, Michael Ross is a "volunteer" who is seeking to speed his path to Connecticut's death chamber.  (The very first person executed after Furman was volunteer Gary Gilmore; here in Ohio, the first person executed was volunteer Wilford Berry; the federal death penalty got back in business with volunteer Timothy McVeigh.)  In this case, defendant Ross even wrote a long letter to Governor Rell asking her not to use her reprieve power, which you can read about in this AP story.

And, on the other coast, this news story reports on the California Supreme Court case which will try to resolve which criminal defendants qualify as "mentally retarded" and thus constitutionally ineligible for execution.  In 2002, the Supreme Court in Atkins v. Virginia declared that executing persons with mental retardation was now unconstitutional, but the Justices punted to the states the tough medical/legal question of who qualifies as "mentally retarded."

UPDATE: Thanks to Howard Bashman at How Appealing for the links here, you can read more this morning from the The Hartford Courant about Connecticut Governor Rell's decision not to issue a reprieve for serial killer Michael Ross.

Will Booker and Fanfan clarify Blakely admissions?

I noted here not long after Blakely came down how many questions the decision raised, but left off that initial list was what qualifies as a sufficient factual "admission" by a defendant to allow for an enhanced sentence.  As detailed here, the Northern District of Texas Federal Public Defender filed an amicus brief in Booker and Fanfan just to address this "admissions" issue, which spotlights its considerable importance.

I have been meaning to highlight some insightful dicta from a Third Circuit case last month discussing the admissions issue.  In US v. Thomas, 2004 WL 2680755 (3d Cir. Nov. 26, 2004), the court detailed the ambiguities stemming from the fact that "the Blakely opinion excepts from its scope sentences imposed 'on the basis of the facts ... admitted by the defendant.'"  Here is the court's lament:

There are at least four possible interpretations of the language "facts ... admitted by the defendant."  First, that language could refer to facts set forth in the indictment to which the defendant pled guilty.  Second, it could refer to facts set forth in the written plea agreement entered into by the defendant. Third, it could be limited to the facts necessary to prove a violation of the offense charged in the indictment.  Fourth, it could refer to facts admitted in the colloquy with the District Court.

Based on the facts before it, the Thomas court could avoid resolving this matter.  But in a number of state and federal decisions since Blakely, lower courts have given various interpretations as to what sort of admissions are sufficient for Blakely purposes: e.g., Michael Ausbrook at INCourts thoughtfully noted how this issue was addressed in the case of Trusley v. State, No. 41A01-0403-CR-109 (Ind. Ct. App. Nov. 24, 2004), from Indiana in this post, and judges on the Tennessee appellate court tussled over this issue recently in State v. Walters, 2004 WL 2726034 (Tenn. Crim. App. Nov. 30, 2004).

Because both Booker and Fanfan arise from jury trials rather than pleas, it seems unlikely this addmissions issue will be directly addressed by the High Court.  However, what sort of admissions are sufficient for Blakely purposes is yet another critical practical issue that will need to be worked through in the post-Blakely world.

Seventh Circuit remedies ugly case of prosecutorial (in)discretion

The recently released US Sentencing Commission 15-year report (highlights here) and the recent Wall Street Journal article on inconsistent application of cooperation credit (details here) both suggest that variations in the exercise of prosecutorial discretion may produce disparities in federal sentencing outcomes.  And a decision last week from the Seventh Circuit in US v. Wilson, No. 03-2170 (7th Cir. Dec. 2, 2004), in which the court found prosecutors acted in bad faith in denying a sentence reduction to a defendant for "substantial assistance," reveals how this discretion can be badly abused.  (Hat tip to CrimProf Blog for noting the case here.) 

In recent posts, I noted a Kafkaesque quality to recent federal and state sentencing cases; but the Wilson case was precipitated by facts which might make even Franz Kafka blush.  Defendant Wilson in a previous case had been granted a two-year reduction in his sentence, but

on account of a bureaucratic bungle, the reduction was never communicated to the individuals who could effectuate it (presumably officials at the Bureau of Prisons). Thus, Wilson neither learned about nor received the benefit of the two-year reduction the district court had granted him.

In the current case, Wilson's defense attorney sought to get him the benefit of the lost two years, in addition to a reduction Wilson was promised for his substantial assistance with authorities.  But, after an elaborate series of events, prosecutors refused to make a necessary motion for the promised reduction.  However, the Seventh Circuit in Wilson ultimately held that the USA's Office in Southern Illinois acted in "bad faith" and "abused" its discretion by conditioning the reduction on concessions that had absolutely nothing to do with "substantial assistance".

Fascinating and sobering evidence of sentencing discrimination

Colorado Law Professor William Pizzi has been kind enough to pass along and arrange for my posting a fascinating article he has co-written concerning the influence of Afro-centric features on sentences.  The article, which is due to be published in the Michigan Journal of Race and Law in the spring, details "a type of discrimination related to race that is taking place within racial categories, namely, discrimination on the basis of a person's Afro-centric features:"

By Afro-centric features, we mean those features that are perceived as typical of African Americans, e.g., darker skin, fuller lips, or a broader nose.  What our research found was that when one examines sentencing from this perspective, those inmates who have more pronounced Afro-centric features tend to receive longer sentences than others within their racial category who have less pronounced Afro-centric features.

If you are intrigued by this brief account of the piece (and how could you not be), you can download the full draft here:

Download pizzi_et_al_psych_draft_dec_2004.doc

More consequences while we wait for Booker and Fanfan

As detailed in this AP report, US District Judge Sylvia H. Rambo today allowed recently convicted Rite Aid executive Franklin Brown to remain free on bail pending appeal, at least until the Supreme Court decides Booker and Fanfan.  As article explains, "Brown was convicted last year of 10 criminal counts related to his tenure as the pharmacy chain's vice chairman and top lawyer [and] had been scheduled to turn himself in Dec. 13 to begin serving a 10-year prison term."  Here are more snippets from the story:

"The Blakely issues in this case are significant, and a definitive resolution of the matter could be forthcoming," Rambo wrote in a seven-page ruling.

Brown attorney Peter Goldberger said Monday his client was "relieved" to get news of Rambo's decision. "But in the short term. For now," Goldberger said.... "It's not a case where you can say, this side will win or that side will win, and that you'll know the minute the decision is handed out," he said.

Perhaps this means there may be one person rooting for the decisions in Booker and Fanfan to take a lot longer.  But I continue to hope that this week we finally get a decision from the Supreme Court.  As noted before, the Court has announced that opinions will be issued each of the next two days, and eventually I have to be right when predicting the decision is coming soon.

More on BOP gearing up for Booker and Fanfan

I have received a lot of terrific feedback from many quarters to this post inquiring about efforts inside federal prisons to gear up for a decision in Booker and Fanfan.  The feedback has all essentially confirmed that the Bureau of Prisons has encouraged each of its 100-plus institutions to take appropriate steps to inform prisoners about the outcome in Booker and Fanfan (whenever that happens) and to make the opinion and other legal materials available as part of a broader effort to ensure open communication at this dynamic time in federal sentencing.

In the course of my discussions of these matters, I was reminded of the riots that took place in more than a few federal facilities in October 1995 after Congress rejected the US Sentencing Commission's recommendation to lower crack cocaine penalties, which forced the US Department of Justice declared a lockdown at federal prisons nationwide.  Whatever the outcome in Booker and Fanfan, I sincerely hope the reaction is calm and orderly everywhere.

Resources on Texas justice

Responding to some of my weekend posts here and here on the unique brand of justice in Texas, Scott Henson, a non-lawyer working on sentencing issues in the Texas legislature, referred me to his blog on criminal justice topics, wonderfully named Grits for Breakfast. 

The Grits Blog includes a lot of coverage of non-capital sentencing issues in Texas — e.g., a great post on drug courts in Texas can be found here, which is a terrific supplement to my recent drug courts post here.  The blog also has many useful links to Texas criminal justice resources and organizations. Check it out, especially if you have a particular interest in Lone Star justice.

Remarkable retro retroactivity reality

I reported here on a federal case with Kafkaesque qualities, but a case coming from the Illinois Supreme Court last week has a factual backdrop that perhaps not even Franz Kafka could have imagined.  The case of Lucien v. Briley, 2004 WL 2743586 (Ill. Dec. 2, 2004), concerns the retroactive application of Apprendi and Blakely, and it raises some issues I recently highlighted here.

Lucien is not remarkable legally, though it does reiterate the view of the Illinois Supreme Court that Apprendi (as well as Blakely) is a "new procedural rule" that will "not apply retroactively to cases in which the direct appeal process had concluded when Apprendi was decided."  But Lucien is quite remarkably factually because the lower Illinois courts had applied Apprendi retroactively in state habeas and had released the defendant from custody in December 2001.  Thus, at the time of the Illinois Supreme Court's decision last week, defendant Lucien had been free for three years (after having served more than 20 years of the 60-year extended-term sentence that had been imposed based on judicial fact-finding in 1980).

Interestingly, Lucien argued to the Illinois Supreme Court that he should not be reincarcerted because "his conduct while at liberty establishes that he is rehabilitated."  The Court ducks this compelling claim, even though it seems to find support in a provision of the Illinois Constitution, by remanding the case for further proceedings in the lower courts.

Based on these remarkable facts, it is interesting to speculate whether (1) Lucien might seek cert. on the Apprendi retroactivity issue (if only perhaps to try to extend his time free), and (2) whether lower courts might accept Lucien's claim that "public policy forbids reincarcerating a rehabilitated person at further public expense."  But, regardless of the court happenings, this seems like a case where executive clemency could bring a close to a case which seems more appropriate for resolution in equity than at law.