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June 10, 2005

News on Oregon's Blakely fix bill

This article from the Salem Statesman Journal provides a terrific account of the proposed Blakely fix legislation moving along in Oregon.  Here are selections from the article detailing the bill's proposed new sentencing procedures:

Some criminal defendants will face two jury proceedings, instead of one, under a bill that allows Oregon to continue to use aggravating factors to lengthen prison sentences.  The Senate passed the bill on a 28-1 vote Thursday and sent it to the House.  There was no debate....

So-called "departure sentences" account for 200 to 300 new cases annually, according to state officials. The new procedures also would apply to an estimated 200 defendants whose sentences have been returned to circuit courts.

Under Senate Bill 528, prosecutors would have to tell defendants upon indictment — or soon afterward — whether they will bring up "enhancement" facts at trial that could lead to longer prison sentences.  Enhancement facts relating to the crime, such as the use of a gun, would be considered by jurors at the same time they decide guilt or innocence.  The trial judge could defer that consideration to a follow-up sentencing phase, however, if it could be "unfairly prejudicial" to the defendant.  Enhancement facts relating to the defendant, such as whether racial or sexual motivation existed, would be considered by jurors in a separate sentencing phase if they found the defendant guilty.

I am intrigued and pleased to see this legislation, which responds to the new Sixth Amendment doctrine through Blakely-ization of sentencing procedures, incorporates a kind of offense/offender distinction in its jury procedures. (I a discuss the offense/offender distinction at length in my Conceptualizing Blakely article). 

For a (now slightly-dated) review of other state Blakely fixes, check out an April post on the State of state Blakely fixes and high court rulings.

June 10, 2005 at 08:50 AM | Permalink


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