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February 16, 2006

What should and will SCOTUS do with the state Blakely cases?

As recently noted in my Valentine week sentencing wish list, the Supreme Court on Friday has on its conference schedule a set of major state Blakely cases from California and Tennessee (background here and here and here).  The more I think about these cases, the more unsure I am about what SCOTUS should or will do with these cases.

I can say confidently that SCOTUS should not simply deny cert in these cases.  Though Tennessee changed its sentencing law to avoid future Blakely issues, California continues to sentence thousands of defendants each month under its constitutionally questionable system.  And, as previously noted here, even if the Supreme Court ducks these matters now, the California cases will get back at the High Court through habeas.  Moreover, as detailed in posts listed below, there is a deep division among many states about the meaning and reach of Blakely

Of course, SCOTUS probably should not have denied cert on the issue of Booker plain error, but it did (background here and here and here).  So, just because SCOTUS should do something with these state Blakely cases does not mean it will.  Still, I would be quite surprised if the Court simply denies cert in these cases.

But saying SCOTUS should take up these state Blakely cases does not answer how it should do so.  I think the Tennessee case is perhaps ripe for summary reversal, although there are some procedural complications in the case.  The California cases avoid some of these procedural complications, but I wonder if the Court would feel comfortable summarily reversing on an issue that would be extraordinarily consequential to how California and other states operate their criminal justice systems.

In thinking through these issues, one must also throw into the analytical mix the current SCOTUS sentencing head-count on Apprendi-Blakely issues and the great uncertainty surrounding what Justice Alito and Chief Justice Roberts may think about Blakely issues ("Sc-Alito" background here and here; "Sca-Robers" background here).  And what of CJ Roberts' obvious efforts to bring greater consensus and lower the heat on various contentious constitutional issues (background here).   My head hurts, but I am excited to see what might happen.

Some related prior posts:

February 16, 2006 at 09:54 AM | Permalink

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Comments

"[E]ven if the Supreme Court ducks these matters now, the California cases will get back at the High Court through habeas."

Yes, but on habeas the standard of review is vastly different, and I expect Justice Alito will adhere more strictly to that standard than Justice O'Connor did. The Rompilla case so indicates, in my opinion.

There is most certainly room to argue that the California Supreme Court applied Blakely incorrectly, but to say it did so unreasonably within the meaning of AEDPA is a very long stretch.

SCOTUS needs to take it on direct review to definitively settle the question.

Posted by: Kent Scheidegger | Feb 16, 2006 10:38:36 AM

Doug,

Do you think the Court will take up the Restitution/Forfeiture Blakely issue?

Posted by: Thayil | Feb 16, 2006 11:11:50 AM

"There is most certainly room to argue that the California Supreme Court applied Blakely incorrectly, but to say it did so unreasonably within the meaning of AEDPA is a very long stretch."

But in saying that the California Court applied Blakely incorrectly the Court still would effectively settle the issue for those other states that have adopted the Tennessee/California view of Blakely. So I don't think deciding the issue in the context of a direct appeal is critical.

Posted by: steve | Feb 16, 2006 11:53:21 AM

In addition, given the way that the Ninth Circuit applied Blakely to Hawaii's law in Kaua, there would/could be a big transition mess if this has to work its way through habeas. Grant now, grant now, grant now....

Posted by: Doug B. | Feb 16, 2006 1:04:17 PM

Thayil, I highly doubt that it will get a cert grant any time soon.

Posted by: Brian K | Feb 16, 2006 2:36:20 PM

I love this site so so so much :) Cool site!!

Posted by: Jane | Mar 17, 2006 7:37:00 AM

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