December 18, 2004
Blakely gets no respect
I am starting to think of Blakely v. Washington as the Rodney Dangerfield of Supreme Court decisions: it gets no respect. I noted in this post in July that law professor Cass Sunstein failed to mention Blakely in his review of the 2003-04 Supreme Court term (a term which Professor Sunstein characterized as marked by "minimalism" through "narrow" and "restrained" rulings). In that post, I also noted that Blakely got little or no mention in other term-in-review stories.
Now, thanks to this post at How Appealing, I see that Blakely is also getting overlooked by law professor David J. Garrow in this article forthcoming in American History Magazine. Though Professor Garrow's article is principally about the history of 20th century Supreme Court appointments, at the tail end of the piece he asserts that no moments of "moral invocation ... took place during the court's 2003-04 term." He also suggests the 2003-04 term was marked by an "unusual outbreak of judicial meekness."
But I have a hard time reading Justice Scalia's opinion for the Court in Blakely — especially statements such as "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment" — as anything but a profound moral invocation. And if Blakely is a meek decision, I would hate to see what happens after a spirited ruling. Indeed, based on all I have seen and reported upon in the last six months, I continue to stand by my assertion here that Blakely may be the biggest criminal justice decision not just of the Rehnquist Court, but perhaps in the modern history of the Supreme Court.
Latest FSR Blakely issue on-line
The third Federal Sentencing Reporter issue covering Blakely — FSR Volume 17, Number 2 (Dec. 2004) entitled "Further Implications of Blakely" — is now fully available on-line here. The contents of this issue are detailed here, and the issue's cover page and the final version of my "Conceptualizing Blakely" article from the issue are downloadable here.
Details about the two previous Blakely issues are here and here. These issues and an FSR subscription can be ordered here and accessed electronically here. As I have previously suggested (only half-jokingly), an FSR subscription is a nice holiday present for sentencing gurus and geeks (I pride myself on being both).
More capital headlines
Though the invalidation of Kansas's death penalty scheme is the biggest legal story of the week (discussed here), a number of other death penalty realities have also captured headlines.
- As detailed here by TalkLeft, this AP article discusses a federal defendant's allegations of racial discrimination in the decision to seek the death penalty against only one black defendant in a large alien smuggling conspiracy. As the article details, "US District Judge Vanessa Gilmore asked Assistant US Attorney Tony Roberts to provide her a letter from U.S. Attorney General John Ashcroft explaining his office's refusal to 'disclose why you sought the death penalty on this guy, the only black guy, and not on the others.'"
- As linked here by How Appealing, the California death penalty is continuing to make front-page news in the wake of the Peterson verdict. (My post here discusses the recent Peterson-driven media coverage of the death penalty.) This New York Times article and this San Francisco Chronicle article provide insights on the peculiar realities of California's semi-embrace of capital punishment. (The state has the largest and still growing death row with over 640 condemned persons, but has only executed 10 persons in the modern death penalty era.)
A sign of the capital times
The ruling by the Kansas Supreme Court yesterday in Marsh declaring the state's death penalty procedures unconstitutional (basics here) is yet another piece of evidence suggesting that the death penalty is now dying a slow death in the US.
(For more on the Marsh ruling, here are articles from the New York Times and the Kansas City Star and the Lawrence World-Journal. The KC Star article details that the state plans to appeal the Marsh ruling to the US Supreme Court, and the World-Journal piece details the crimes of the six men on Kansas' death row. For more on the decline of death, consider the recent posts here and here.)
It is fascinating that the Marsh ruling in Kansas comes only months after New York's highest court found unconstitutional that state's death penalty procedures in People v. LaValle (discussed here). Kansas and New York in the mid 1990s , after long periods without capital punishment, both enacted new death penalty laws. But now, a decade later, both states have had their capital sentencing procedures declared unconstitutional.
Notably, not a single person has been executed in either Kansas or New York, although a handful of defendants had been sent to each state's death row. And, as detailed in a New York estimate and a Kansas study, both states have spent an enormous amount of money administering the death penalty. These realities lead me to continue to wonder when fiscal conservatives will start speaking out vocally against the death penalty as a bad investment of limited state resources.
December 17, 2004
Minnesota Supreme Court orders Blakely briefing
Taking a slightly different approach to sorting out the impact of the Blakely earthquake than Oregon's Supreme Court (detailed here), the Minnesota Supreme Court has ordered additional briefing on remedy issues while contemplating the fate of its state sentencing system. In the order in Minnesota v. Shattuck, C6-03-362 (Minn. Dec. 16, 2004), which can be downloaded below, the Minnesota Supreme Court first holds that upward departures under existing law are unconstitutional:
It is the determination of this court that, in accordance with the rule of Blakely v. Washington, 124 S. Ct. 2531 (2004), the district court’s imposition of an upward durational departure under Minn. Stat. § 609.109, subd. 4 (2002), from the Minnesota Sentencing Guidelines’ presumptive sentence violated appellant’s Sixth Amendment right to trial by jury. We note that because imposition of the presumptive sentence is mandatory absent additional judicial findings under the legislatively-created Guidelines regime, the presumptive sentence is the maximum penalty authorized solely by the jury’s verdict for the purposes of Apprendi v. New Jersey, 530 U.S. 466 (2000). The test of Apprendi is one of functional effect rather than form. Because the Guidelines regime permits the district court to durationally depart upward from a presumptive sentence after finding aggravating factors not considered by the jury, it unconstitutionally usurps the role and undermines the function of the jury. A full opinion will follow.
The Court then ordered the parties, within 30 days of the order, to "file and serve supplemental briefs on the issue of remedy." Here are the questions for the supplemental briefs:
(1) Whether the portions of the Sentencing Guidelines that unconstitutionally allow the district court to impose an upward durational departure based on facts not reflected in the jury’s verdict or admitted by the defendant are severable from the remainder of the Guidelines. See Minn. Stat. § 645.20 (2002); City of Duluth v. Sarette, 283 N.W.2d 533, 537 (Minn. 1979).
(2) If the unconstitutional portions of the Guidelines properly may be severed, whether this court has the inherent authority to authorize the use of sentencing juries and a bifurcated trial process.
(3) Whether a sentencing jury or a bifurcated trial process implicates double jeopardy concerns.
(4) In the present case, what specific remedy is appropriate? In particular, does the fact that the district court denied appellant’s request to place before the jury aggravating factors that would, if found, justify sentencing enhancement, affect the disposition of this matter?
The order also includes a dissent by Justice Page who says "Because the judicial findings made here were void ab initio and of no legal effect, I would remand to the district court for imposition of the presumptive sentence. Any responsibility for fixing the “Blakely problem” lies with the legislature and not this court."
Oregon Supreme Court decides Dilts (and ducks issues)
In the aftermath of rendering its opinion in Blakely, the Supreme Court also vacated an Oregon Supreme Court judgment involving Oregon's guideline system and remanded the case for further consideration in light of Blakely. The case, Oregon v. Dilts, No. 99CR-0172; CA A106034 (Or. Dec. 16, 2004), has now been decided by the Oregon Supreme Court.
In Dilts, the Oregon Supreme Court finds Blakely problems in aspects of Oregon's sentencing system, but it expressly rejects the state's invitation to invalidate the entire Oregon sentencing guidelines and also ducks other "remedy" issues. Here are just a few highlights from Dilts:
[W]e hold in this case only that, under Blakely, the sentencing guidelines were applied unconstitutionally to defendant. We agree with the state that this decision will have a significant impact on criminal sentencing because Blakely also makes it clear that whenever a trial court, in the absence of an effective waiver, imposes a sentence that exceeds the presumptive sentence on the basis of aggravating facts found by the trial court rather than by a jury (other than the fact of a prior conviction), that sentence amounts to an unconstitutional application of the sentencing guidelines.
However, the fact that the sentencing guidelines may be applied unconstitutionally, as they were in this case, does not mean that we must reject the sentencing guidelines themselves as unconstitutional. On the contrary, the Court in Blakely specifically stated that determinate sentencing schemes, like Oregon's sentencing guidelines, are permissible if they are implemented "in a way that respects the Sixth Amendment."...
The state argues that, if this court concludes that defendant's sentence is invalid, then it should remand to allow a jury to consider aggravating factors that could support a sentence in excess of the presumptive sentence in the guidelines.... Defendant disagrees, however, with the state's position that, at this stage of the proceeding, it now could subject defendant to a separate sentencing trial on remand during which it would seek to prove to a jury the aggravating facts previously found by the trial court. Defendant asserts that the common law and various state and federal constitutional provisions require the state to allege in the indictment any facts that may enhance the defendant's sentence, or at least to notify the defendant before trial that those facts will be at issue. Defendant points out that the indictment here did not allege such facts and that the state did not notify defendant that such facts would be at issue before his guilty plea. In those circumstances, he argues, the state is precluded from seeking to present those facts to a sentencing jury now.
We decline to answer the question that the state raises, because, at this point in the proceeding, it is not presented in a sufficiently concrete way. It is, at least, contingent on actions that the parties may or may not take on remand. The only concrete issue before us at this time is whether defendant's sentence, which we affirmed in Dilts I, is invalid in light of Blakely. We have held that it is. We also have rejected the state's argument that we nevertheless should affirm defendant's sentence by severing the "mandatory" sentence provision of the guidelines and applying the guidelines to defendant, as so modified....
The Oregon Supreme Court does additional "issue ducking" in footnote five of the opinion, which also highlights how the states are waiting for some additional guidance from the US Supreme Court:
The state makes several other arguments regarding how this court should or should not apply Blakely in other contexts. Here, we reach only the arguments necessary to the disposition of this case in this court. We recognize the many unsettled questions regarding the application of Blakely and Apprendi to different aspects of Oregon's sentencing scheme. We think that those questions are better answered in the context of specific cases in which they are raised and briefed. Moreover, we are aware that we may be shooting at a moving target. In response to Blakely, prosecutors, the criminal defense bar, and members of the legislature in many states, including Oregon, may be reviewing sentencing procedures for possible modification. Additionally, the United States Supreme Court has granted petitions for certiorari in two cases that raise Blakely-related issues, [citing Booker and Fanfan]. In deciding those cases, the Court may provide further guidance regarding the scope of the jury trial right as it applies to criminal sentencing.
Hawaii Apprendi habeas decision
Thanks to a friend in Hawaii, I can now provide for downloading the Hawaii opinion, previously noted here, of US District Judge Susan Oki Mollway in Kaua v. Frank, Civ. No. 03-00432 (D. Haw. Dec. 9, 2004), in which the defendant was granted a reduction of a state sentence to 20 years. Here's the opening paragraph:
This § 2254 petition presents the question of whether Kaua's extended sentence of incarceration violates Apprendi. This court concludes that Kaua's extended sentence clearly violates Apprendi, and that the extended sentence was based on an unreasonable application of Apprendi. This court therefore grants Kaua's § 2254 petition.
The death penalty is not in Kansas anymore
With thanks to Howard Bashman at How Appealing for the tip, there is big news from Kansan. Today in Kansas v. Marsh, No. 81,135 (Kan. Dec. 17, 2004), the Kansas Supreme Court, in a 4-3 decision, declared the state's death penalty law is unconstitutional.
The Marsh decision is long and intricate, but this Wichita Eagle story provides the highlights of a ruling that, in the article's terms, is "not a sweeping indictment of capital punishment but rather identified a technical error in the law the state Legislature could fix during their upcoming session." Additional coverage of the ruling is also available in this AP article.
Big Blakely news from sunny states
Big news from two newspaper reports of noteworthy Blakely rulings in sunny locales. First, this news story from Florida reports on a resentencing decision in which the judge concluded that Blakely precluded him from adding eight years to a sentence for attempted murder and aggravated child abuse. This is the first report I have seen of Blakely impacting sentencing in Florida
Second, this news story from Hawaii indicates that a federal district judge granted a state defendant habeas relief last week on an Apprendi/Blakely claim. I will quote at length from the story, because this seems like an important ruling, but I cannot find the decision on-line:
U.S. District Judge Susan Oki Mollway ruled last week that Wayman Kaua should receive a 20-year term after he was convicted of attempted manslaughter following the standoff, in which he fired more than 17 shots and left thousands of Pearl City residents stranded for about 22 hours....
Mollway said the life term violated Kaua's federal constitutional rights because a state judge, not the jury, enhanced his sentence, from a maximum of 20 years he was facing for the conviction on attempted manslaughter and related counts, to life in prison....
The jury rejected the attempted-murder verdict and convicted Kaua on lesser offenses of attempted manslaughter and other charges that ordinarily carry a maximum 20-year term.
But at sentencing, Honolulu Prosecutor Peter Carlisle asked that Kaua's sentence be extended to the life term because he committed multiple offenses and the sentence would be "necessary for the protection of the public."
Huddy granted the extended term. He said Kaua abused drugs and could not control his behavior when under the influence of drugs or under extreme stress. The state high court twice affirmed the sentence, the latest ruling coming in 2003.
"The Hawai'i Supreme Court's conclusion that Kaua's extended sentence did not violate (the 2000 U.S. Supreme Court decision, Apprendi v. New Jersey) was contrary to, and involved an unreasonable application of, clearly established federal law, as determined by the U.S. Supreme Court," Mollway wrote.
Death penalty drama in Connecticut
As previously detailed in this post, Connecticut is scheduled next month to have its first execution in the modern death penalty era, in part because condemned serial killer Michael Ross is forgoing his remaining appeals. (It is quite common for a jurisdiction's first execution to be "volunteer" — 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.)
But there is still legal drama surrounding Ross' execution because, as detailed in this Connecticut Post article, the state's Public Defenders are trying to intercede to pursue appeals on Ross' behalf. (This is also a common development in "volunteer" cases.) The Connecticut law blog Kirby's Reports is doing an excellent job covering these developments with posts here and here.
In addition, as detailed in this Hartford Courant article, the European Union has now chimed in to ask Connecticut's governor and parole board to delay or halt Ross' execution.
December 16, 2004
Racial disparity and sentencing reform
The Atlanta Journal-Constitution today has this potent opinion column entitled "Fix sentencing guidelines: Move to end disparity along racial lines hasn't worked" authored by John Lewis and Robert Wilkins. In addition to providing effective background on the Booker/Fanfan story, the piece gives particular attention to the important issue of racial disparity in federal sentencing:
[R]ather than reducing unfair racial disparities in federal sentencing, the evidence shows that the guidelines made the problem worse. Just before Thanksgiving, the Sentencing Commission released a report assessing whether the federal sentencing system has achieved the goals of the 1984 reforms. It confirmed what many observers have long known: In the past 20 years, the federal prison population has gotten significantly darker.
The report also shows that while the average federal prison sentence for black offenders was about five months longer than for whites in 1984, by 2001, the average sentence for blacks was almost 30 months longer.... The report should serve as a catalyst for major discussion about the racial impact of federal sentencing policy, though, to date, it has received scant attention. Of course, data showing vast racial disparities do not necessarily prove that the federal sentencing system discriminates.
But a critical goal of the federal sentencing guidelines was to eliminate unfair racial disparities in sentencing, and the Sentencing Commission has now concluded that "the sentencing guidelines and mandatory minimum statutes have a greater adverse impact on black offenders than did the factors taken into account by judges in the discretionary system in place immediately prior to guidelines implementation."
Racial disparity in incarceration has been a moral blight on America from the beginning days of our criminal justice system. That this disparity continues despite (and indeed because of) the guidelines highlights the need for serious thinking and action on the issue.
Regardless of whether the Supreme Court strikes them down in the Booker and FanFan cases, Congress should repeal the federal sentencing guidelines along with the mandatory minimum drug sentences. Then, Congress should allow the Sentencing Commission to draft new guidelines that treat the minority community fairly. The experiment with the federal sentencing guidelines has failed — it's time to go back to the drawing board.
Hacking into the world of Blakely
Making headlines and getting the attention of the blogsphere today are the sentencings of the defendants who last year hacked into the national computer system of Lowe's hardware stores and tried to steal customers' credit card information.
This AP story notes that the government is calling the nine-year sentence given to Brian Salcedo, who pleaded guilty in August to conspiracy and other hacking charges, "the longest prison term ever handed down in a computer crime case in the United States." But Professor Orin Kerr at The Volokh Conspiracy explains here his sense "that there really isn't anything interesting about this case."
I basically concur with Orin's first take on the case, though I do think the plot is starting to thicken. First, this follow-up AP story indicates that Salcedo's co-defendant, Adam Botbyl, today received a sentence of only 26 month. Though I would need a lot more information to pass judgment, this prior story discussing the defendants' seemingly comparable roles in the offenses makes me wonder why Salcedo is getting a sentence four times longer than his co-conspirator.
Further, though not discussed in any of these news stories, I wonder about how Blakely fits into all of these developments. The press reports indicate the plea deals were being put together just as the Blakely earthquake hit. Of course, by late August, the Sixth Circuit had ruled in Koch (details here, commentary here) that Blakely should not apply to the federal sentencing guidelines unless and until the Supreme Court so held. But that holding may be disrupted by Booker and Fanfan, and I cannot help but speculate about what kind of Blakely waivers might have been requested and secured by the government while negotiating the plea agreements in this case.
Another notable Blakely case in Colorado
I am just back from talking about Blakely in Dayton, and later tonight I hope to share a number of the interesting points raised by the federal criminal justice practitioners at this event. But in the meantime, thanks to Howard Bashman at How Appealing, I see there is another notable state Blakely ruling from Colorado.
Today, in Colorado v. Barton, 03CA0793 (Colo. App. Ct. Dec. 16, 2004), the Colorado Court of Appeals on Blakely grounds reversed the twelve-year state prison sentence handed down to Terry Lynn Barton, who pled guilty to starting what is reported to be "the largest wildfire in Colorado history." This Denver Post article provides some of the details and the notable context.
For prior Colorado Blakely developments, see:
More on the decline of death
I have just enough time before I head out to Dayton to spotlight quickly a number of notable death penalty developments.
First, the Death Penalty Information Center now has available on-line its year-end on the death penalty. This report received a good deal of press earlier this week, as detailed here, because it documents for 2004 drops in death sentences, executions, death row population, and public support for capital punishment.
Second, this New York Times article reports on the remarkable New York legislative hearing concerning whether the state should reinstate the death penalty. (As detailed here, these hearings are necessary because six month ago, the New York Court of Appeals in People v. LaValle (discussed here) invalidated the "deadlock instruction" provision of New York's death penalty law.)
According to the Times article, famed Manhattan District Attorney Robert M. Morgenthau spoke out forcefully against the death penalty:
"The death penalty exacts a terrible price in dollars, lives and human decency," Mr. Morgenthau said. "Rather than tamping down the flames of violence, it fuels them."
December 15, 2004
Off to Dayton
When I accepted the speaking engagement a few months ago, I thought for sure this mid-December talk would be about Booker and Fanfan. But thanks the Supreme Court taking it's time, instead we will be talking about the wait for Booker and Fanfan.
Nevertheless, I always get great insights from talking to, and hearing from, practitioners about Blakely and its aftermath. With luck (and decent driving weather), I should be back on-line late tomorrow to share some of these insights.
While I am away, I hope the amazing dialogue being conducted around this post in the comments, and on other sites, will continue. (Thanks to Professor Orin Kerr at The Volokh Conspirary for driving blog traffic here by noting this compelling case.)
The Peterson case and media coverage of the death penalty
As I suggested here, one silver lining to the spectacle that is the Peterson case may be that the media will examine, more thoughtfulness than usual, the many important and troublesome issues that surround the administration of the death penalty.
For example, this LA Times editorial raises important questions about the costs of the death penalty, an issue that has been under-examined even in the voluminous academic literature about capital punishment. (Notably, as detailed here, these costs concerns have captured the attention of New Yorkers, in part because "state and local governments have spent approximately $170 million administering [the NY capital] statute [and yet not] a single person has been executed in New York since the law's enactment.")
And this San Francisco Gate article gives considerable attention to the challenges surrounding the "recruitment of lawyers for death penalty appeals." (The article also includes some interesting quotes from Chief Justice Ronald George of the California Supreme Court.) This AP story also notes the lawyer issue, while also probing whether appellate realities might influence jury decision-making in capital cases.
Of course, I cannot follow, let alone give a positive spin, to all the media coverage of the Peterson case. (Howard Bashman has collected an amazing array of the articles from this week here.) But I can suggest that those interested in a (pre-Peterson) scholarly examination of the relationship between the media and the death penalty should be sure to read DePaul Professor Susan Bandes's article, Fear Factor: The Role of Media in Covering and Shaping the Death Penalty, which appeared in last Spring's Issue of the Ohio State Journal of Criminal Law.
Another state Supreme Court taking up Blakely
From a lawyer in New Jersey I got the news that the New Jersey Supreme Court has granted certification on the Blakely claims in State v. Abdullah, 372 N.J. Super. 252 (App. Div. 2004). I reported on Abdullah in this post here back in October, and just this past week noted here the apparent mess, as report by the NJ Attorney General, that Blakely is making of Garden State sentencing.
By my very rough count, there are now perhaps as many as a dozen state supreme courts actively considering a host of Blakely issues (although comprehensively tracking all the issues and the status of the developing state Blakely jurisprudence is, as I suggested here and here, more than I can manage).
The continued rehabilitation of rehabilitation
This summer, I noted here that many states have recently taken a fresh look at rehabilitation in their criminal justice systems, primarily through elimination of some mandatory sentences and expanded treatment-centered alternatives to incarceration. And just last week, this post detailed that Texas policy-makers are also caught up in this tangible modern shift from penal retribution toward rehabilitation. (For more on the Texas story, consider this recent editorial from the Austin-American Statesman, as well as continued great Texas coverage by Scott Henson at Grits for Breakfast and from the site Effective Solutions for the Texas Criminal Justice System.)
The news from other states this week provides additional evidence of what might be viewed as rehabilitation's resurgence:
- This article from Arizona discusses the opening of new rehabilitation-focused prison units, which a state representative says "represent the first step in what we hope will be the increased focus on corrections and rehabilitation."
- This article from South Dakota discusses the rehabilitation-focused recommendations of a state task force, which called for state and local corrections officials to "prioritize services for criminals with a chance of turning their lives around."
As revealed by these articles and other materials (such as this 2002 VERA Institute report), budget concerns may be driving many of these developments, especially as we see traditional "tough-on-crime" Republicans serving as leading proponents of this shift toward rehabilitation. Nevertheless, whatever the reasons, it is useful to note that Blakely is not the only force prompting reconsideration of modern sentencing laws and policies. And for more on these topics, see:
Intriguing report about sex offenders
A few months ago in this post I noted that the law and policy of sex offender sentencing is always interesting and often quite depressing. A recent report from the Washington Sentencing Guidelines Commission reveals that it can also be surprising.
The report, entitled simply Sex Offender Sentencing, is available here, and the executive summary reports these notable and perhaps unexpected facts:
- Nationally, according to the United States Department of Justice, Office of Juvenile Justice and Delinquency Prevention, the number of substantiated cases of sexual abuse of children declined 40% from 1992 to 2000. Victim-reported sex offenses involving children declined by 56%.
- In Washington, sex offenses account for a small percentage of felony sentences entered annually. During fiscal year 2003, of the 27,213 felony sentences imposed in the state, 1,403 involved sex offenses.
- On average sex offenders serve longer terms in prison and jail than persons convicted of other felony offenses. In fiscal year 2003, the average sentence length for all felonies was 37.3 months, compared to 90.8 months for sex offenses.
- Sex offenders re-offend at lower rates than those convicted of other felonies. After five years, 15% of sex offenders return to prison for new offenses compared to 43% of offenders convicted of property crimes
The full report is an intriguing and even heartening read, in part because presents an example of the sentencing reform process at its best: the Washington Sentencing Guidelines Commission conducted many public hearings and marshaled an array of data and information in the process of assessing the state's sex offender laws and policies. Here's the report's own account of all the stakeholders who worked with the Commission on these issues:
During the seven public hearings, the Commission heard comments and concerns on almost every aspect of sex offenders and offenses. Persons who made written and oral presentations to the Commission included victims (teenagers and seniors), parents and family members of victims, professional victims’ advocates, victim treatment providers, legislators, judges, city and county officials, law enforcement officers, prosecutors, defense counsel, community custody/supervision officers, sex offender treatment evaluators and treatment providers, sex offender family members, proponents of a citizen’s initiative aimed at enhanced punishment, students, educators and members of the general public who attended the meeting to learn about the issues. In two locations, Seattle and Vancouver, the Commission staff spoke with convicted sex offenders and their supporters.
December 14, 2004
An update on a remarkable capital case
Earlier this month, I discussed here the remarkable ruling of the Ohio Supreme Court in State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087 (Dec. 1, 2004) (available here). In Yarbrough, a unanimous court's concluded it was compelled to reverse a death sentence imposed in the gruesome murders of two Ohio college students for lack of jurisdiction because the murders were committed in Pennsylvania.
Following up that post, I was recently contacted by Chris Muha, a Yale Law School student who is the older brother of Brian Muha, one of the students murdered 5 years ago by Terrell Yarbrough. Chris asked for my feedback and opinion on the motion for reconsideration being filed in the case. Because I am not an expert on such jurisdictional issues, I could not help Chris directly, but I did offer to share the motion in this forum.
In addition to the motion for reconsideration, Chris himself prepared a helpful synopsis of the motion, both of which you can download below. In the synopsis, Chris says he would be "grateful to everyone who offers their reflections here and helps me think through these issues, regardless of what your thoughts are." You can use the comments for such reflections, or e-mail Chris at email@example.com.
Fascinating "prior conviction" case from Indiana
Though, as detailed here and here, I have given up trying to track comprehensively Blakely decisions coming from lower state courts, I still hope to spotlight state Blakely rulings that are particularly noteworthy or interesting. Today's decision from Indiana in Ryle v. State, 2004 WL 2857496 (Ind. App. Dec. 14, 2004), qualifies because of its thorough discussion of the scope of Blakely's "prior conviction" exception.
I have done a lot of previous coverage of the "prior conviction" exception (examples here and here and here and here), and also more recently addressed generally criminal history issues. (These issues also intersect with the offense/offender distinction I champion in my Conceptualizing Blakely article.)
Ryle incorporates all the issues of these prior posts in one ruling: the court affirms an enhanced Indiana sentence over Blakely objections based "Ryle's criminal history, which included two adult criminal convictions and four juvenile adjudications, and the fact that he was on probation at the time he committed the instant offense." The court, after a thorough review of recent case law (and noting some divisions of authority), concludes that "Ryle's enhanced sentence of forty-five years does not violate his Sixth Amendment rights:"
[T]he two aggravators identified by the trial court, namely, Ryle's criminal history, which includes juvenile adjudications, and the fact that he was on probation at the time he committed the instant offense are both proper under Blakely [because] those aggravators do not trigger the Blakely analysis.
As suggested in my prior posts, the Ryle court's conclusions are quite debatable. (Indeed, as noted here, appellate courts in Oregon last week came to a directly contrary conclusion concerning the scope of the "prior conviction" exception).
Perhaps even more disconcerting, it seems somewhat unlikely the Supreme Court will resolve (or even speak to) this important issue concerning the scope of Blakely's "prior conviction" exception in Booker and Fanfan. Thus, we may have a very long wait for a definitive resolution of an issue that is of critical importance to the operation of most sentencing guidelines systems.
The death penalty making more headlines
Though I am obviously terrible at predicting when the Supreme Court will decide Booker and Fanfan, it seems I can predict what sentencing stories will be making headlines. As I suggested here, with non-capital sentencing in limbo for another month, the sentencing news is likely to be focused on death penalty developments.
Of course, we can thank the Scott Peterson case for most of the capital sentencing headlines. I am hopeful, though not optimistic, that much of the coverage will be as thoughtful as provided here by Dahlia Lithwick on NPR. As I noted before here, though the Peterson case has been sensationalized by the media, it does raise a number of interesting legal issues. (It has also, not surprisingly, generated interesting blogsphere coverage at the Volokh Conspiracy and TalkLeft and Professor Yin.)
But also noteworthy and making headlines is the Death Penalty Information Center's latest year-end report on the death penalty. (Press release here, report forthcoming.) This report — which asserts 2004 drops in death sentences, executions, death row population, and public support for capital punishment (and thus reinforces some of the points I made here) — has already generated coverage by CNN.com and the LA Times.
Pondering the link between sentencing policy and crime rates
Sequential posts at CrimProf Blog this morning — titled "Use of Death Penalty Dropped in '04 for Fifth Year in a Row" and "Crime Rates Decline in Early '04, FBI says" — has me thinking about the links (or lack of links) between sentencing policy and crime rates.
There has long been, of course, a robust debate over whether and how the criminal law deters, but social scientists still struggle with more refined questions of whether and how marginal changes in sentence lengths and types may impact crime rates. I find fairly compelling the conclusions of Professors Paul Robinson and John Darley from this recent paper's abstract:
There seems little doubt that having a criminal justice system that punishes violators, as every organized society has, does have an effect in influencing conduct. Having a punishment system does deter. But the evidence increasingly accumulates that there is little added deterrent effect that can be derived from the manipulation of criminal law rules for the distribution of criminal liability and punishment within that system.
I flag these issues in part because 2004 ought to be a uniquely rich and interesting time period for examining the relationship between sentencing policies and crime rates. First, on the death penalty front, as noted here, 2004 has given us the first execution-free month in a decade and in the last few years we have seen nationwide declines the total number of death sentences and in the total number of executions. And yet it appears that murder rates continue to decline even though we apparently are making less frequent use of capital punishment.
Second, in the non-capital sentencing arena, though the Blakely earthquake has had a profound impact on sentencing law and policy, I am inclined to doubt Blakely is having any real impact on crime rates. Under rational deterrence theory, I think we should expect crimes rates in the second half of 2004 to rise in at least some jurisdictions: rational criminals doing cost-benefit analysis ought to realize that Blakely means it will be harder for those jurisdictions with constitutionally problematic guideline systems to impose long sentences. But, especially for the most serious crimes, I do not think there are really any "rational criminals doing cost-benefit analysis."
Because I do not have any economics or social science training, I can do no more than spotlight these issues and hope that other folks much smarter than me start giving these matters serious attention.
Proof that no Blakely news is news
Tony Mauro has this Legal Times article which reinforces my claim that even the lack of a decision in Booker and Fanfan is newsworthy. Tony suggests the failure to issue a decision by now is "a possible sign of sharp divisions among the justices," and he also draws on my post here speculating that the Chief's illness may be playing a role.
December 13, 2004
Advice from a former USSC Commissioner
At last month's hearing before the US Sentencing Commission (detailed here), Professor (and former Commissioner) Michael Goldsmith advocated that, if Blakely is applied to the federal system, the Commission ought to move toward the development of simplified, Blakely-ized guidelines. (The battle over what might happen if/when Blakely is applied to the federal system is discussed a bit in this post and this post.)
Professor Goldsmith has now finished drafting, for publication in a coming issue of the Federal Sentencing Reporter, his "five step approach" to preserving the constitutionality of federal sentencing guidelines. You can download Professor Goldsmith's thoughtful essay, in which he suggests his proposal "would both satisfy the demands of Blakely and best achieve the noble goals of the Sentencing Reform Act," here:
December 13, 2004 in Blakely Commentary and News, Blakely in Legislatures, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack
Back to the capital news desk
With the Supreme Court leaving non-capital sentencing in limbo for another month, the headline sentencing news in the days ahead will likely be coming from the capital sentencing arena.
The Supreme Court itself made capital sentencing news today through its reversal of the Florida Supreme Court's judgment in Florida v. Nixon that defense counsel was constitutionally ineffective for having conceded guilt in an effort to focus on avoiding death sentence. Here are accounts of the decision from the AP and Reuters.
And, in a case that will generate more headlines than it really deserves, the news from California is that the Peterson jury has reached a verdict in the penalty phase of his capital trial.
UPDATE: Scott Peterson's jury has recommended a sentence of death, and under California law the trial judge must impose that sentence unless he finds that the
verdict is "contrary to law or the evidence presented." Fascinating. So much for my musings this weekend that the death penalty is starting to fade away in the US. However, I will stand by my earlier prediction here that it will be a very long time, because of appellate realities, before Peterson's execution day ever arrives.
Sentencing (and immigration) is hard work
While contemplating another month of contemplating what the Supreme Court is contemplating in Booker and Fanfan, I thought it worth noting a pattern in the Court's work this fall. Interestingly, the Justices have now decided all the cases heard in October except its two big sentencing cases (Booker/Fanfan on the federal guidelines; Roper on the juvenile death penalty) and a few immigration cases (basic case details here and here from SCOTUSblog).
Thus, it seems the High Court is most divided, or just particularly slow, on matters of sentencing and immigration (though I should note that the Court's very first opinion this term, Leocal v. Ashcroft, involved the intersection of immigration and sentencing). This pattern also suggests, I suppose, that whichever Justices are most likely to be writing on immigration issues are least likely to be authoring the sentencing opinions.
CREDITS: This latest exhibition in obsessive tasseography owes thanks to Howard Bashman for the case information, and also for his speculations here about who may be writing Booker and Fanfan based on which Justices have yet to author a majority opinion from the Supreme Court's October 2004 argument session.
December 13, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Death Penalty Reforms, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack
My waiting wish-list
With no decision today, I did not get my wish of an opinion in Booker and Fanfan as a Hanukkah present. And, unless the Supreme Court surprises us with extra opinions this month, it also seems I wasted my time writing to Santa to ask for a Booker and Fanfan opinion. But even though it appears we now must all wait until January for a sentencing present from the Supreme Court, other institutions can keep me in a holiday mood by working on this waiting wish-list of mine:
1. I wish the US Sentencing Commission supplements the fascinating data it has collected here about post-Blakely federal case processing, which could provide a fuller picture of the state of federal sentencing now.
2. I wish a few state Supreme Courts resolve pending Blakely appeals, in order to further define and refine the many post-Blakely legal questions that need to be resolved (see some background here). My own perspectives on Blakely (reflected in articles here and here) have been greatly influenced by state court rulings, and the Supreme Court apparently needs all the help it can get.
3. I wish a few state sentencing commissions (or even the offices of state Attorneys General) provide additional data and analysis on how Blakely is impacting state criminal justice systems. We get snippets from briefs and news stories, but nothing compares to the systematic analysis that can be done by an effective sentencing commission (as Minnesota's commission has shown).
4. I wish the ABA and the ALI and the Constitution Project and all the other important groups working on sentencing reform can use this extra Booker-free time to gear up for what is likely to be a hectic January. I was rooting for a decision from SCOTUS now so we might all have a few weeks to mentally process the decision before congressional re-writing of federal sentencing was realistically feasible. Now I fear we could possibly get a Supreme Court decision and then new federal sentencing legislation in rushed succession in January.
5. I wish the powers that be in college football could figure out how to create a playoff system. This mysterious blog sensibly suggests here that I watch a lot of football to keep in good cheer and keep my mind off Booker and Fanfan. But what really keeps me from being in good cheer is knowing that USSC Chair Judge Hinojosa's beloved Texas Longhorns will not get a chance to prove on the field that they might actually be the best team in college football. I suppose if the Longhorns take their frustrations out on Michigan in the Rose Bowl, that should suffice for this Buckeye.
December 13, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack
No news is big news
I am genuinely amazed that the Supreme Court has now issued 11 opinions this term, and yet we still have not seen a ruling in Booker and Fanfan. Perhaps it really is all my fault.
I have previously highlighted here and here and here how many different persons and institutions are eager for a decision in Booker and Fanfan — including, of course, both other branches of the federal government. Recall that, way back in July, the US Congress and the Acting Solicitor General expressed in remarkable terms how critical it was for the Court to promptly rule on the constitutionality of the procedures used in applying the federal sentencing guidelines. Moreover, as I noted before, last year the Court in McConnell v. Federal Election Commission was able to resolve the constitutionality of the new federal campaign finance laws — in opinions totaling 298 written pages!! — before heading home for the holidays.
I must now speculate that Chief Justice Rehnquist's illness is playing a role in the delay. Notably, as detailed here, the Chief did not participate in some of the cases decided today. I presume that reveals that the Chief's health is impacting his ability to be a fully functioning member of Court. Though I doubt that CJ Rehnquist is a swing vote on whether Blakely applies to the federal guidelines, he could be a swing vote on the second severability question. Moreover, CJ Rehnquist's absence from the Court may mean that there is not a chief administrator pushing other Justices to complete their opinions. [UPDATE: Howard Bashman has news here on the impact of the Chief's health, as well as speculations here about who may be writing Booker and Fanfan based on which Justices have yet to author a majority opinion from the Supreme Court's October 2004 argument session.]
More than a few folks, as particularly detailed in posts here and here, have suggested that January would be a better and/or more appropriate time for a decision in Booker and Fanfan. I am not sure I agree, since I think there are real costs — to both federal and state criminal justice systems — stemming from another month of legal uncertainty about constitutionally required sentencing procedures. However, given the challenges SCOTUS faces and the apparently deep divisions within the Court, I suppose I should be glad the Court is taking whatever time it needs to get Booker and Fanfan right.
December 13, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (6) | TrackBack
The wait continues: no Booker and Fanfan!
Despite the widely shared belief when cert. was granted in August that the Supreme Court would resolve the post-Blakely fate of the federal sentencing guidelines this year, it now appears that we will have to wait until at least January for a decision in Booker and Fanfan. The Court was busy today, issuing a number of opinions as detailed by SCOTUSblog here, but no Booker and Fanfan.
December 13, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack
Will it be today, or another month of waiting?
Gosh knows, though I am enjoying all the speculating and prognosticating, I am ready for a decision in Booker and Fanfan. Others around the blogsphere seem ready, too, as evidenced by the recent Blakely posts from TalkLeft, The Volokh Conspiracy's Orin Kerr, and Jonathan Soglin at Criminal Appeal. (Jonathan's post also interestingly notes that the California Supreme Court has not yet scheduled argument in its two Blakely cases, even though review was granted in July.)
Of course, the big question is whether Booker and Fanfan are ready for us. We should know in a few hours. Stay tuned.
December 13, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack
December 12, 2004
Is it finally Booker/Fanfan eve?
Perhaps I should try a little reverse psychology and predict the opinion in Booker and Fanfan is not coming tomorrow. Would that lead this blog to report the opinion is coming Monday?
Whatever is going to happen tomorrow, it is fun to read again and again Milbarge's terrific 'Twas the Night Before Booker. I suppose it is also fun to read all these prior "pre-decision" posts:
- 'twas the morning before Booker?
- Here we go again
- Gearing up for Booker and Fanfan
- Booker and Fanfan pre-reading guide
And, as noted before, lots of additional posts of note and other background materials on Blakely and Booker and Fanfan can also be found on this Blakely Basics page. A wealth of other information can also be accessed through the various Booker/Fanfan and Blakely page links in the right side-bar.
UPDATE: And for an effective overview of the law and politics surrounding Blakely and Booker, this article from today's Philadelphia Inquirer provides a reader-friendly summary of the major stories of modern sentencing reform.
December 12, 2004 in Apprendi / Blakely Retroactivity , Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack
The story of Blakely in the real Apprendi-land
Though New Jersey does not have elaborate sentencing guidelines, it does have an array of structured sentencing laws that Blakely may disrupt. (Or course, the Apprendi case came from New Jersey, so the Garden State is quite familiar with this area of constitutional jurisprudence.) And, as detailed here and in a memo provided here, the appellate courts in New Jersey are working hard to make sense of Blakely.
NJ attorney Steve Sanders — who wrote an amicus brief for the Association of Criminal Defense Lawyers of New Jersey in the the major New Jersey case of State v. Natale, 2004 WL 2599892 (N.J. Super. A.D. Nov. 17, 2004) — was kind enough to pass along the petition filed by the NJ Attorney General seeking state supreme court review of the Natale decision. The petition, which includes an appendix with major Blakely rulings from NJ lower courts, can be downloaded below.
In addition to providing the state's argument for why Blakely should not disrupt NJ sentencing laws and practices, the petition details the disparate NJ lower court Blakely rulings. (Just a few of the other intra-states disputes over Blakely's meaning and application are noted here.) And the petition, in language reminiscent of the pleas by the Acting Solicitor General urging the US Supreme Court to grant cert. in Booker and Fanfan, highlights dramatically the impact of the Blakely earthquake in New Jersey:
[T]here is a clear split of authority among Appellate Division panels on [Blakely]. The lack of resolution of this issue has caused tremendous confusion in the trial courts, which will only continue until this Court resolves this issue.
Uncertainty regarding the effect, if any, of the Blakely opinion on our ordinary term sentencing system has had a paralyzing effect on sentencing judges, defense attorneys, and prosecutors who are unable to predict and agree on how this Court will ultimately interpret Blakely. In the past five months since the Blakely opinion was issued, plea bargaining, jury trials, and sentencing proceedings continue to be affected by this overwhelming confusion and doubt.
Thoughtful coverage of major sentencing issues
I have praised the press's recent potent coverage of a range of sentencing law and policy issues (some examples here and here and here), and this morning there are more fine articles on all the most important sentencing issues of the day:
- This article from the St. Cloud Times provides a complete and insightful review of the impact of Blakely on Minnesota state sentencing. (Other weekend articles on Blakely's impact in other states are here.) The article includes the important news that the "fear of numerous two-part trials hasn't materialized" after Blakely apparently because many courts are using "special verdict forms that ask jurors whether they believe the aggravating factors exist" at the main trial of guilt.
- This article in the Milwaukee Journal Sentinel, written by state Judge Michael Brennan, serves as a fitting follow-up to the paper's terrific series of sentencing articles entitled "Locked In: The Price Of Truth In Sentencing" (detailed here and here and here). Judge Brennan in his article reviews, with many national insights, the state of sentencing in Wisconsin.
- This article in The Oregonian thoroughly reviews a challenge to the state's death penalty laws which could "threaten the death sentences of all 29 men on Oregon's Death Row." The article provides even more fuel for my recent speculation here that the punishment of death may itself be dying a slow death.
December 12, 2004 in Blakely Commentary and News, Blakely in the States, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack