May 23, 2005
Colorado Supreme Court applies Blakely!
This morning in Lopez v. People, No. 04SC150 (Colo. May 23, 2005) (available here), the Colorado Supreme Court issued a major ruling concening the application of Blakely in the Mile High state. Here is are the official abstract of what looks like a long and thoughtful opinion in Lopez:
The Supreme Court holds that section 181.3401(6) aggravated sentencing, based on a sentencing judge finding the presence of extraordinary aggravating circumstances, is constitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 124 S. Ct. 2531 (2004), if it is based on one of at least four Blakely-compliant or Blakely-exempt types of aggravators: 1) facts found by a jury beyond a reasonable doubt; 2) facts admitted by the defendant; 3) facts found by a judge after the defendant stipulates to judicial factfinding for sentencing purposes; and 4) facts regarding prior convictions.
The Court expects that this holding, implementing the Supreme Court's Blakely decision, will apply only to a limited number of cases. First, it will apply retroactively only to cases pending on appeal. Second, in the future, the legislature may enact a statute that responds to the United States Supreme Court's holdings in Apprendi, Blakely, and Booker by adopting a statute that does not place the trial court into the position of finding facts in order to aggravate sentences. Third, under the current statute, prosecutors arranging plea agreements, or trial courts considering guilty pleas, can insist that defendants admit to those facts potentially needed for aggravated sentencing. Fourth, the jury can be asked by interrogatory to determine facts potentially needed for aggravated sentencing. Fifth, and most important to the case before us, the full range of mitigated, presumptive and aggravated sentencing remains available under the statute if based on constitutionally-permissible facts, in accordance with Blakely.
Under section 181.3401(6), the existence of a constitutionally-permissible aggravating or mitigating fact widens the sentencing range to a floor of one-half the presumptive minimum up to a ceiling of double the presumptive maximum. The sentencing judge then has full discretion to sentence within this widened range according to traditional sentencing considerations. However, if the trial judge must find additional facts in order to impose a sentence outside of the presumptive range, the rule of Blakely applies.
The aggravated sentence in this case was imposed in part on the basis of a prior conviction, and the Court holds that one constitutionally valid aggravator is sufficient to support an aggravated sentence under section 181.3401(6). Accordingly, the Court affirms the court of appeals' judgment upholding the aggravated sentence for possession of cocaine in this case.
A win for one capital defendant, an interesting DIG, and more Booker GVRs
As so well covered over at SCOTUSblog, part of this busy morning at the Supreme Court included a victory for a capital defendant in Deck v. Missouri (04-5293), where the Court ruled, 7-2, that "it is unconstitutional to require an individual, appearing before a jury for a possible death sentence, to be restrained by shackles and handcuffs throughout the proceeding." The lengthy Deck opinion can now be accessed at this link.
And, in an interesting development in another capital case, the Court also dismissed Medellin v. Dretke (04-5928) as "improvidently granted." Medellin, you will recall, was to address the impact of rulings by the World Court on respecting consular rights in context of US death penalty cases. The lengthy Medellin opinion can now be accessed here.
And, continuing a Monday morning tradition, the Supreme Court's also issued some more Booker-inspired GVRs, although I count only 8 this morning on this order list.
May 22, 2005
Sunday's sentencing blogsphere stroll
A Sunday afternoon stroll around the blogsphere has led me to these notable posts on sentencing topics:
- TalkLeft in this post discusses the fascinating news that a federal judge in California, responding to a lawsuit assailing the horrid state of health care in state prisons, has ordered California to show cause why the prison health care system shouldn't be placed into receivership.
- Crim Prof Blog updates here the story of the Indiana death row inmate, due to be executed this week, who is seeking a reprieve in order to donate his liver to his dying sister. The Indiana Parole Board has rejected the request, and Governor Mitch Daniels will have the final say in a case which provides a different perspective on a "culture of life."
Appellate Law & Policy has posts on interesting sentencing decisions from the First Circuit and Fifth Circuit. The Fifth Circuit case, US v. Piniero (available here) involves a Booker remand for resentencing (the issue was preserved below, and government could not meet its harmless error burden).
- Gideon at The Connecticut Law Blog has this post discussing a bill to amend the state's sex offender registry law.
- White Collar Crime Prof Blog in this post reports on interesting federal sentencings in a Philadelphia corruption scandal.
Another potent editorial against mandatories
In a number of prior posts (which are linked below), I assembled excerpts from many editorials criticizing the House's consideration of HR 1279 and HR 1528, the gang and drug sentencing bills which include a number of harsh mandatory minimums. Today, in this editorial entitled "Mandatory minimums a smoke screen," the Freeport Journal Standard (Illinois) adds these similar sentiments:
Both [the gang and drug] bills have drawn fierce opposition from human rights, religious and civil rights groups, and are vehemently opposed by the American Bar Association. But in their zeal to bang the old "tough on crime" drum, the GOP rages forward, undaunted and oblivious to the obvious hypocrisy.
For example, even as states across the nation, not to mention Great Britain, Canada and Russia, move toward decriminalization of small amounts of cannabis, the proposed new law requires anyone convicted in federal court of passing a joint to someone who ever set foot in drug treatment to prison for a minimum of five years — 10 years for a second offense. Meanwhile, the average time served by convicted rapists in America is about seven years....
[W]rites USA Today, in a May 17 editorial, "It's time for a serious debate on whether massive arrests of low-level users are worth the cost or having any benefit." Ronald Reagan sold the nation on a "drug war" targeting cocaine cartels and hard drugs in crime-infested inner cities. Now it's a self-perpetuating and profitable de facto war against the nation's young people — rural, urban and in between.
No, the real threat to America isn't "judicial activism." It is the insanity of putting more and more Americans in prison for low-level drug crimes — leaving millions of broken families, newly dependent on government handouts, behind.
Here are some recent posts with other similar criticisms of HR 1279 and HR 1528:
- The Fool(ish bills) on the Hill
- More editorial criticism of House's pursuit of mandatory minimums
- Still more criticisms of gang bill
- Criticisms of the House's passage of gang bill
Clemency dynamics in Arizona and nationwide
Over the holiday period last year, the papers and this blog were buzzing about the modern disuse of the historic executive clemency powers (see some of the posts at this archive). Today, this article from Arizona provides interesting data and discussion of the decline of clemency in that state, and the article is especially effective in documenting the forces which account for this decline in Arizona and nationwide. Here's the lead:
Arizona governors are largely ignoring advice from the state's clemency board, leaving hundreds of prisoners serving time that the board has said doesn't fit their crimes.
A decade ago, Arizona abolished parole, leaving the governor with the final say if any inmates should be let out of prison early. Since then, the number of inmates recommended to the governor for shortened prison terms by the Board of Executive Clemency has skyrocketed. But in the vast majority of cases, even in those where the trial judge agrees with the board that a sentence is too long, the governor has rejected the board's recommendations.
DOJ planning national sex offender registry
As detailed in this Washington Post article, AG Alberto Gonzales has announced that the Justice Department is planning "a national registry of sex offenders that would allow Internet users to check all the state databases in a single search."
Officials said the Web site is being created in response to complaints from victims' rights groups and some lawmakers that dangerous sex predators were often evading detection by moving across state lines.
Attorney General Alberto R. Gonzales, in a speech at the National Press Club announcing the initiative, said Justice would aim to have a working Web site linked to 20 states within 60 days. The remaining states would be added by fall, he said.
Responding to this news, TalkLeft in this post discusses and links to a lot of its concerns about sex offender registries.