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September 10, 2005

Amazing state Justices

I am back from a terrific trip to North Carolina participating in this conference, and my respect for Tar Heel sentencing was further enhanced by the experience. In addition to benefiting from the many nuanced and sophisticated insights of other speakers, I have to give a special shout out to the Justices of the North Carolina Supreme Court, three of whom attended the conference just to listen(!) to defense attorneys(!) talk about sentencing. (I can't help but wonder how much better the US Supreme Court's sentencing jurisprudence might be if SCOTUS Justices made a habit of attending these sorts of events.)

Upon my return home, I received news of another event further enhancing my respect for state Justices: the Supreme Court of Washington yesterday issued a thoughtful opinion exploring Blakely's applicability to a restitution order.  I received via e-mail this helpful summary of the ruling in State v. Kinneman, No. 76051-9 (Wash. Sept. 8, 2005) (available here):

On Thursday, the Washington State Supreme Court, in an unanimous decision, held:

(1) "punishment for purposes of Apprendi and Blakely includes punishments other than prison sentences";

(2) restitution under Washington law is "both punitive and compensatory", and "is strongly punitive because [the restitution statute] authorizes restitution in an amount that exceeds the amount necessary to compensate the victim" [the law authorizing the criminal trial judge to impose up to double the offender's gain or the victim's loss]; and

(3) "while restitution is punishment, it does not require jury fact-finding under the post-Blakely decision in United States v. Booker... Given the broad discretion accorded the trial judge by the statute [no restitution, in some extraordinary circumstances, up to double the offender's gain or the victim's loss], the lack of any set maximum, and the deferential abuse of discretion review standard, the restitution statute provides a scheme that is more like indeterminate sentencing not subject to Sixth Amendment jury determinations than the [statute's] determinate sentencing scheme at issue in BlakelyBooker underscores the critical fact that the mandatory and binding nature of the [statute's] provisions for imposing exceptional sentences was crucial to the holding in Blakely."

September 10, 2005 at 12:44 AM | Permalink


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