Tuesday, October 14, 2014

Three Justices dissent from denial of certiorari in Jones/Ball acquitted conduct case

I am very disappointed to have to report that this morning the Supreme Court denied certiorari review in the notable federal drug sentencing case from DC involving Antwan Ball and his co-defendants concerning judicial fact-finding to increase a federal guideline sentence contrary to a jury acquittal.  As I noted in this post last week, Jones v. US, No. 13-10026, was relisted by the Justices after their "long conference."  Now today's SCOTUS order list has at the very end the news that cert has been denied in Jones v. US, No. 13-10026, with a three-page dissent from that decision authored by Justice Scalia and joined by Justices Thomas and Ginsburg.  Mega-bummer!!!

Here is the bulk of Justice Scalia's dissent from the denial of cert in Jones (with emphasis in the original): 

A jury convicted petitioners Joseph Jones, Desmond Thurston, and Antwuan Ball of distributing very small amounts of crack cocaine, and acquitted them of conspiring to distribute drugs. The sentencing judge, however, found that they had engaged in the charged conspiracy and, relying largely on that finding, imposed sentences that petitioners say were many times longer than those the Guidelines would otherwise have recommended.

Petitioners present a strong case that, but for the judge’s finding of fact, their sentences would have been “substantively unreasonable” and therefore illegal.  See Rita v. United States, 551 U.S. 338, 372 (2007) (SCALIA, J., joined by THOMAS, J., concurring in part and concurring in judgment).  If so, their constitutional rights were violated.  The Sixth Amendment, together with the Fifth Amendment’s Due Process Clause, “requires that each element of a crime” be either admitted by the defendant, or “proved to the jury beyond a reasonable doubt.”  Alleyne v. United States, 570 U. S. ___, ___ (2013) (slip op., at 3). Any fact that increases the penalty to which a defendant is exposed constitutes an element of a crime, Apprendi v. New Jersey, 530 U.S. 466, 483, n. 10, 490 (2000), and “must be found by a jury, not a judge,” Cunningham v. California, 549 U. S. 270, 281 (2007).  We have held that a substantively unreasonable penalty is illegal and must be set aside.  Gall v. United States, 552 U.S. 38, 51 (2007).  It unavoidably follows that any fact necessary to prevent a sentence from being substantively unreasonable — thereby exposing the defendant to the longer sentence — is an element that must be either admitted by the defendant or found by the jury.  It may not be found by a judge.

For years, however, we have refrained from saying so.  In Rita v. United States, we dismissed the possibility of Sixth Amendment violations resulting from substantive reasonableness review as hypothetical and not presented by the facts of the case.  We thus left for another day the question whether the Sixth Amendment is violated when courts impose sentences that, but for a judge-found fact, would be reversed for substantive unreasonableness.  551 U.S., at 353; see also id., at 366 (Stevens, J., joined in part by GINSBURG, J., concurring) (“Such a hypothetical case should be decided if and when it arises”).  Nonetheless, the Courts of Appeals have uniformly taken our continuing silence to suggest that the Constitution does permit otherwise unreasonable sentences supported by judicial factfinding, so long as they are within the statutory range....

This has gone on long enough.  The present petition presents the nonhypothetical case the Court claimed to have been waiting for.  And it is a particularly appealing case, because not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense.  Petitioners were convicted of distributing drugs, but acquitted of conspiring to distribute drugs.  The sentencing judge found that petitioners had engaged in the conspiracy of which the jury acquitted them. The Guidelines, petitioners claim, recommend sentences of between 27 and 71 months for their distribution convictions.  But in light of the conspiracy finding, the court calculated much higher Guidelines ranges, and sentenced Jones, Thurston, and Ball to 180, 194, and 225 months’ imprisonment.  

On petitioners’ appeal, the D. C. Circuit held that even if their sentences would have been substantively unreasonable but for judge-found facts, their Sixth Amendment rights were not violated.  744 F. 3d 1362, 1369 (2014).  We should grant certiorari to put an end to the unbroken string of cases disregarding the Sixth Amendment — or to eliminate the Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are substantively reasonable.

I am especially disappointed that Justice Scalia and his joiners here could not garner one more vote to grant cert from any of the newer Justices who came on the Court after Blakely and Booker became the Sixth Amendment law of the land.  Of course, Justice Alito has frequently shown his disaffinity for expanding the Sixth Amendment rights recognized in those cases.  But Chief Justice Roberts joined the Blakely gang in applying (and arguably expanding) Sixth Amendment rights in Cunningham v. California and Justices Sotomayor and Kagan have "shown empathy" for defendants seeking expanded applications of the Sixth Amendment in more recent cases such as Alleyne.  As I will explain in a future post, anyone (like me) hoping that Justices Sotomayor and Kagan might end up being even more committed to defendants' procedural rights at sentencing has to be deeply troubled by their disinclination to provide a fourth vote for granting cert in Jones.

Previous related posts on this case and acquitted conduct sentencing enhancements:

October 14, 2014 in Advisory Sentencing Guidelines, Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Monday, September 29, 2014

Rooting for acquitted conduct petition grant from SCOTUS long conference

Today, on the first Monday before the first Monday in October, the US Supreme Court Justices meet for the so called "long conference" at which they consider which of the large number of cert petitions that piled up over the summer ought to be heard during the Court's upcoming term. SCOTUSblog this morning here reviews some of the highest profile matters sure to generate the bulk of coverage and commentary.

Of course, I am always hoping/rooting for the Justices to grant cert on any and all sentencing issues. But there is one particular case, Jones v. US coming up from the DC Circuit, in which I filed an amicus in support of cert and thus in which I have a particular interest.  Regular readers of this blog are familiar with this case, which concerns judicial fact-finding to increase a federal guideline sentence contrary to a jury acquittal. (In prior posts (some of which appear below), I stressed the sentence given to one of the co-defendants in this Jones case, Antwan Ball.)

Over at SCOTUSblog, Lyle Denniston provided this effective review of the case and the SCOTUS filings a few weeks ago, and I encourage readers to check out that post or my prior posts linked below for context and background.  Here I will be content to provide this link to the cert petition and this link to my amicus brief in support of cert, as well as these paragraphs from the start of my amicus brief:

Sentencing rules permitting substantive circumvention of the jury’s work enables overzealous prosecutors to run roughshod over the traditional democratic checks of the adversarial criminal process the Framers built into the U.S. Constitution.  When applicable rules allow enhancement based on any and all jury-rejected “facts,” prosecutors can brazenly charge any and all offenses for which there is a sliver of evidence, and pursue those charges throughout trial without fear of any consequences when seeking later to make out their case to a sentencing judge.  When acquittals carry no real sentencing consequences, prosecutors have nothing to lose (and much to gain) from bringing multiple charges even when they might expect many such charges to be ultimately rejected by a jury.  Prosecutors can overcharge defendants safe in the belief they can renew their allegations for judicial reconsideration as long as the jury finds that the defendant did something wrong.  Indeed, piling on charges makes it more likely that the jury will convict of at least one charge, thus opening the door for prosecutors to re-litigate all their allegations before the judge.  Under such practices, the sentencing becomes a trial, and the trial becomes just a convenient dress rehearsal for prosecutors....

The Petitioners contend, as several Justices have already observed, that the Sixth Amendment is implicated whenever a legal rule (in this case, substantive reasonableness review) makes judge-discovered facts necessary for a lengthy sentence.  Amicus further highlights that this case presents the narrowest and most troubling instance of such a Sixth Amendment problem — namely express judicial reliance on so-called “acquitted conduct” involving jury-rejected, judge-discovered offense facts to calculate an enhanced Guideline sentencing range and thereby justify an aggravated sentence.  By allowing prosecutors and judges to nullify jury findings at sentencing such as in the case at bar, the citizen jury is “relegated to making a determination that the defendant at some point did something wrong,” and the jury trial is rendered “a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.” Blakely, 542 U.S. at 306-07.

Though various forms of judicial fact-finding within structured sentencing systems may raise constitutional concerns, this case only concerns the uniquely serious and dangerous erosion of Sixth Amendment substance if and when Guideline ranges are enhanced by facts indisputably rejected by the jury.  It may remain possible “to give intelligible content to the right of a jury trial,” Blakely, 542 U.S. at 305-06, by allowing broad judicial sentencing discretion to be informed by Guidelines calculated based on facts never contested before a jury.  But when a federal judge significantly enhances a prison sentence based expressly on allegations indisputably rejected by a jury verdict of not guilty, the jury trial right is rendered unintelligible and takes on a meaning that could only be advanced by a Franz Kafka character and not by the Framers of our Constitution.

Previous related posts on this case and acquitted conduct sentencing enhancements:

September 29, 2014 in Advisory Sentencing Guidelines, Blakely Commentary and News, Blakely in the Supreme Court, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

Thursday, May 01, 2014

"Procedural Rights at Sentencing"

The title of this post is the headline of this notable new article by Carissa Byrne Hessick and F. Andrew Hessick.  Here is the abstract:

In determining which constitutional procedural rights apply at sentencing, courts have distinguished between mandatory and discretionary sentencing systems.  For mandatory systems ― systems that limit sentencing factors and specify particular punishments based on particular facts ― defendants enjoy important rights including the right to a jury, the right to proof beyond a reasonable doubt, the right to notice of potential sentencing aggravators, and the right not to be sentence based on ex post facto laws.  By contrast, for discretionary systems ― systems that leave the determination of sentencing factors and how much punishment to impose based on particular facts to the judge’s discretion ― defendants do not enjoy these protections.

This Article challenges this discrepancy.  It argues that, given the rationales underlying each of these rights, there is equal reason to apply these rights in discretionary sentencing systems as in mandatory ones.  As it explains, procedural rights regulate the means by which facts are found and the manner in which courts use those facts, and consequently are critical to discretionary systems.  Just as in mandatory sentencing systems, judges in discretionary systems must make factual findings to determine the appropriate sentence to impose.  The Article argues that the various justifications for providing fewer procedures in discretionary schemes are based on misconceptions about the nature of discretion at sentencing and inaccurate historical analysis.

May 1, 2014 in Advisory Sentencing Guidelines, Blakely Commentary and News, Blakely in the Supreme Court, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Tuesday, April 01, 2014

"Alleyne on the Ground: Factfinding that Limits Eligibility for Probation or Parole Release"

The title of this post is the title of this notable new article by Nancy King and Brynn Applebaum now available via SSRN. The piece contends that the Supreme Court's Sixth Amendment ruling in Alleyne v. United States last Term renders a number of state sentencing systems constitutionally suspect, and here is the abstract:

This article addresses the impact of Alleyne v. United States on statutes that restrict an offender’s eligibility for release on parole or probation. Alleyne is the latest of several Supreme Court decisions applying the rule announced in the Court’s 2000 ruling, Apprendi v. New Jersey. To apply Alleyne, courts must for the first time determine what constitutes a minimum sentence and when that minimum is mandatory. These questions have proven particularly challenging in states that authorize indeterminate sentences, when statutes that delay the timing of eligibility for release are keyed to judicial findings at sentencing. The same questions also arise, in both determinate and indeterminate sentencing jurisdictions, under statutes that limit the option of imposing either probation or a suspended sentence upon judicial fact finding.

In this Article, we argue that Alleyne invalidates such statutes. We provide analyses that litigants and judges might find useful as these Alleyne challenges make their way through the courts, and offer a menu of options for state lawmakers who would prefer to amend their sentencing law proactively in order to minimize disruption of their criminal justice systems.

April 1, 2014 in Blakely Commentary and News, Blakely in the States, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (2) | TrackBack

Tuesday, March 11, 2014

Might SCOTUS soon (ever?) consider whether its Apprendi jurisprudence should apply to criminal forfeitures?

The question in the title of this post is my response to the brief discussion of a constitutional claim appearing in yesterday's Ninth Circuit decision in US v. Wilkes, No. 11-50152 (9th Cir. March 10, 2014) (available here).  Here is why:

Wilkes argues that determination of the amount of his criminal forfeiture by the district judge, as opposed to a jury, violated his Sixth Amendment right to a jury trial. Wilkes argues that Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 133 S. Ct. 2151 (2013), require that the jury find facts justifying an increase in either end of the range of the prescribed penalty. Wilkes further argues that Southern Union Co. v. United States, 132 S. Ct. 2344 (2012), applied Apprendi and, by extension, Alleyne, to monetary penalties — which he contends includes criminal forfeiture.

Wilkes’s argument is directly contradicted by binding Supreme Court precedent. In Libretti v. United States, 516 U.S. 29, 48–49 (1995), the Court expressly held that there is no Sixth Amendment right to a jury verdict in a criminal forfeiture proceeding. The Supreme Court has cautioned courts of appeals against concluding that “recent cases have, by implication, overruled an earlier precedent.” Agostini v. Felton, 521 U.S. 203, 237 (1997).  Thus, “[i]f a precedent of [the Supreme] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). In compliance with the Supreme Court’s instructions, we reject the argument that Southern Union implicitly overruled Libretti.

Notably, and I think sensibly, this Ninth Circuit panel does not try to explain why Libretti is still sound and good law in light of Apprendi, Southern Union and Alleyne. Instead, it says it is not its role/job to reverse a pre-Apprendi ruling based on Apprendi; that is what SCOTUS has to do. But since SCOTUS has reversed at least two significant pre-Apprendi rulings based on Apprendi, defendants might be wise to keep raising and preserving this claim until the Supreme Court gives it another modern review.

March 11, 2014 in Blakely Commentary and News, Blakely in the Supreme Court, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, February 02, 2014

"Sentencing and Prior Convictions: The Past, the Future, and the End of the Prior Conviction Exception to Apprendi"

The title of this post is the title of this interesting and potent new paper now available via SSRN and authored by the always interesting and potent Nancy King. Here is the abstract:

This article traces the fascinating history of early efforts to identify defendants and their prior convictions as well as the evolving use of prior convictions in aggravating punishment; examines how contemporary repeat offender penalties fall short of punishment goals and contribute to the racially lopsided profile of punishment today; and critiques potential justifications for the prior conviction exception to the rule in Apprendi v. New Jersey, arguing that the exception should be abandoned.

The article summarizes empirical research testing the relationship between prior convictions and examining the efficacy of repeat offender sentences in reducing recidivism; collects commentary on the use of risk prediction in sentencing; surveys state-by-state eighteenth century authority that belies the claim that denying element status to prior convictions that raise the range of punishment is a longstanding tradition; evaluates the weaknesses of the case law underlying the Court's decision in Almendarez-Torres; argues that defendants need not be prejudiced when prior convictions are treated as elements; and observes that the original reason that a very small number of states in the nineteenth century stopped requiring prior convictions to be treated as elements — namely, that an offender’s criminal history was often unknown unless or until a warden recognized him — no longer exists.

An earlier version of the article was delivered as the Barrock Lecture on Criminal Law at the Marquette University Law School.

February 2, 2014 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News, Blakely in the Supreme Court, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Sunday, July 14, 2013

Though he was found not guilty by the jury, are sentencing stories in the Zimmerman prosecution and verdict?

The question in the title of my post is my effort to provide a (final?) place for discussion of the high-profile state acquittal in Florida which a jury handed down late last night.  I suspect lots of folks are eager to talk about the substance of the prosecution and verdict, but I want to stress (and praise) the procedures in this post.  

I find quite notable and important the seemingly wide-spread acceptance by so many of the jury-based decision-making process and the use of a beyond a reasonable doubt standard of proof at Zimmerman's criminal trial.  And, as regular readers might guess, I wish to tie this reality back to my perception of the profound and enduring wisdom to be found in the Apprendi and Blakely line of cases (as for the Booker remedy, er... not so much).

Though perhaps we will see some future criticisms of the trial procedures in the Zimmerman case, my observation of early media and public reactions suggests a general acceptance of the process even among those who might profoundly disapprove of the outcome.  Indeed, I will be quite surprised if anyone — even those most bothered by the jury acquittal here such as the Martin family — will respond to the acquittal outcome by arguing that the result shows we should have professional judges rather than lay jurors resolving these kinds of cases or by advocating the use of a lesser proof standard than guilt beyond a reasonable doubt for criminal trials.  I surmise that this reality highlights just how deeply all Americans believe adjudication by lay jurors using a high standard or proof is fundamental to a fair and  criminal justice system.

And yet in sentencing in hundreds of courtrooms nationwide every day, once a guilty verdict has be entered by plea or conviction on any count, we still have what Judge Gerry Lynch once astutely called "our administrative system of criminal justice."  A lone state employee in the form of a judge uses informal and often hurried and cursory procedures to decide whether a convicted defendant will get a lenient of harsh sentence.  And the underlying facts in the Graham case (which made it to the Supreme Court for other issues) showed starkly how some judicial bureaucrats may often respond much too leniently at first and then much too harshly thereafter when administrating sentencing justice.

I do not mean this post to be a formal pitch for jury sentencing in all cases or an effort to assail the challenging and couragous decisions that federal and state sentencing judges must make every day.  Rather, I just want to highlight my belief that the apparent acceptance of the Zimmerman verdict even by those who dislike the outcome is a sign of the procedural wisdom of the Constitution's embrace of a unique and uniquely valuable set of procedures — procedures that cases like Apprendi and Blakely (and now Southern Union and Allenye) wisely seek to extend to even more and more criminal justice adjudications.

Prior posts on Zimmerman prosecution:

July 14, 2013 in Blakely Commentary and News, Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (31) | TrackBack

Saturday, July 13, 2013

"Constitutionally Tailoring Punishment"

The title of this post is the title of this great-looking new article by Richard A. Bierschbach and Stephanos Bibas. Here is the abstract:

Since the turn of the century, the Supreme Court has begun to regulate non-capital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants).  Though both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice.  These two seemingly disparate lines of doctrine respond to structural imbalances in non-capital sentencing by promoting morally appropriate punishment judgments that are based on retail, individualized input and reflect the views and perspectives of multiple institutional actors.

This new understanding illuminates how both doctrines relate to the Court’s earlier regulation of capital sentencing and how checks and balances can promote just punishment in a pluralistic system.  It also underscores the need for other actors to complete the Court’s work outside the confines of rights-based judicial doctrines, by experimenting with a broader range of reforms that are not constitutionally required but rather are constitutionally inspired.

July 13, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Blakely Commentary and News, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, June 24, 2013

Are 12 Alleyne GVRs (including one from Kansas) a sign of big Sixth Amendment things to come?

Busy on various fronts, I have not yet had time to think through all the impacts that the Supreme Court's Sixth Amendment work last week in Alleyne might produce.  But today, via this SCOTUS order list, I see that there are 12 cases in which certiorari is granted and the judgment vacated, so the case can be remanded "for further consideration in light of Alleyne v. United States, 570 U.S. ___ (2013)."

Some GVRs after a big SCOTUS sentencing ruling are not always a big deal, as there can often be a number of cases in the cert pipeline that are just like the case in which the Supreme Court announced its new doctrine. But, in addition to being intrigued that there were at least a dozen Alleyne-type claims already in the SCOTUS pipeline that now led to these GVRs, I find especially notable that one comes from Kansas (Astorga v. Kansas) and thus involves a remanded "to the Supreme Court of Kansas for further consideration in light of Alleyne v. United States, 570 U.S. ___ (2013)."

My sense has been that Alleyne could and would not end up being nearly as disruptive to any state sentencing systems as Blakely had been. But this Kansas remand, as well my own sense that at least a few states relied on Harris for a while to keep some parts of their sentencing systems in tact, prompts the question in the title of this post.

June 24, 2013 in Apprendi / Blakely Retroactivity , Blakely Commentary and News, Blakely in the Supreme Court, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Monday, June 17, 2013

First-cut reactions as to what is big, and not so big, about Alleyne's reversal of Harris

I will likely have a lot to say about the specifics of the Sixth Amendment discussions in all the Alleyne opinions later today once I get more time to review the decision more closely.  But I have three quick reactions about the ruling and its potential impact I wanted to share right away.  I will give this trio of reactions these labels: big, not-so-big, could-be-huge.

The Big of Alleyne: though serious talk of a "Booker" fix to the advisory guidelines sentencing system has not had much juice for a very long time, the Alleyne ruling serves as a final nail in the "mandatory topless guidelines" idea that made the rounds as a potential legislative response to Blakely and Booker in the federal system.  That "fix," which would have required judges to do fact-finding to raise guideline minimums without impacting maximums, depended on the validity and vitality of Harris.  And Harris is now a goner.

The No-So-Big of Alleyne: though persons imprisoned now based on mandatory minimums triggered by judicial fact-finding might hope Alleyne is a new jurisprudential key to freedom, a host of doctrices may ensure very few new imprisoned persons get much benefit from Alleyne.  For starters, the retroactivity doctrines of Teague and AEDPA may make it hard for those long ago sentenced to get their Alleyne claims even heard in court.  Moreover, the harmeless error doctrines of Cotton and Recuenco may make it easy now for judges to say, even in those cases in which the issue can still be raised, that any Sixth Amendment error was harmless.

The Could-Be-Huge of Alleyne: there are any number of shaky exceptions and carve-outs to the full application of Apprendi doctrines, ranging from the prior-conviction exception of Almendarez-Torres to all sorts of efforts by lower courts to refuse to acknowledge Apprendi's potential impact on all sorts of judicial fact-finding that impacts punishment realities.  If Alleyne (which comes just a year after Southern Union) portends a Court now willing and eager to keep taking up Apprendi issues and extending the reach of the Sixth Amendment, we all might be in for quite an interesting Sixth Amendment ride over the next few Term.  (And, for the really creative, perhaps Alleyne could be combined with Peugh to perhaps even generate procedural protections even for federal defendants sentencing in a post-Booker world.)

Prior related post on Alleyne ruling:

June 17, 2013 in Almendarez-Torres and the prior conviction exception, Apprendi / Blakely Retroactivity , Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack

Thursday, March 15, 2012

Seeking early predictions on Southern Union (and Apprendi's future)

This coming Monday, the Supreme Court will hear oral argument on the biggest Apprendicase to come down the pike in a few years.  SCOTUSblog has this effective new argument preview posted on the case, and here is how it begins:

On Monday, March 19, the Supreme Court will hear oral argument in Southern Union Co. v. United States, a case that could bring about profound changes in the way courts impose criminal fines, which serve as the principal sanction for organizations, including corporations.  The Court will have to determine whether fines are subject to the principle announced in Apprendi v. New Jersey: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  To date, the Court has applied this principle only to the death penalty (Ring v. Arizona) and to sentencing schemes limiting years of incarceration a judge may impose in the absence of specific factual findings (Blakely v. Washington, United States v. Booker, Cunningham v. California, and Oregon v. Ice).

The issue arises in the context of an environmental criminal statute authorizing a prison term and a fine “per day” of violation.  The jury was not asked to determine the number of violation days; it returned a general verdict of guilty.  However, the court imposed a sentence based on the premise that the violation had occurred for more than one day.  If the Supreme Court finds that the trial court engaged in judicial fact finding -- and if Apprendi applies to fines -- the sentence violates due process and the Sixth Amendment right to jury trial.

The decision in this case could turn on the Court’s assessment of the judicial role in imposing fines at the time of the Founders and whether fines -- the sanction for corporate “persons” -- are a fundamentally different punishment from incarceration.  Considerations concerning the administration of justice may come into play.  Finally, the opinion should clarify the significance of Oregon v. Ice, the Court’s most recent relevant precedent.

Another Southern Union preview can be found in this Greenwire piece, which includes this discussion of some underlying facts:

Seizing on the Apprendi ruling, Southern Union claims that only a jury can decide on the number of days the company was in violation of RCRA. Although a jury deliberated on the question of Southern Union's guilt, it was U.S. District Judge William Smith of the District of Rhode Island who imposed a total of $18 million in fines and fees based in part on how many days the mercury was illegally stored.

Under RCRA, the company faced a criminal penalty of up to $50,000 a day. The government had asserted in the indictment that the company was in violation for 762 days, meaning there was a maximum fine of $38.1 million.

Southern Union had opted to go to trial so it could argue that the mercury had not been abandoned and was therefore not a waste product.  The company maintained it had stored the mercury carefully and that it would eventually be recycled. The mercury only became a problem when vandals broke into the facility and spilled some of the substance, which led to an expensive remediation process.

After considering the questions concerning the Apprendi ruling, Judge Smith imposed a $6 million fine and a $12 million community service fee. Smith concluded that the jury had found the company to be in violation for the entire period, which gave him the leeway to impose the penalty.

Southern Union had no luck when it appealed to the Boston-based 1st U.S. Circuit Court of Appeals. In December 2010, the court -- going further than Smith -- held Apprendi didn't apply to financial penalties.  It based its ruling in part on a 2009 Supreme Court ruling, Oregon v. Ice, in which the high court, again split 5-4, said that Apprendi was not intended to expand the jury's role beyond what it has done in the past.

Southern Union and its supporters -- which include the National Association of Criminal Defense Lawyers and the U.S. Chamber of Commerce, who filed a joint amicus brief -- say the appeals court is out of sync with other courts around the country that have concluded that criminal penalties are covered by Apprendi....

Solicitor General Donald Verrilli, representing the Obama administration, insisted in his brief that the Supreme Court made clear in the 2009 Iceruling that judges must consider the historical role of the jury in deciding how to draw a line between the role of judges and juries. "This court has long recognized that criminal fines, even significant ones, raise fundamentally different concerns from terms of incarceration or the death penalty," Verrilli said.

The former is a "deprivation of property," while the latter is a "deprivation of liberty or life," he said.  Verrilli delved into English common law in making the case that judges traditionally had "more discretion with respect to fines than they did in imposing terms of imprisonment or death."...

Whatever the court rules, it is not likely to directly affect a large number of cases. There are 15 federal statutes that impose fines based on the number of days of a violation, although a number of them concern violations of environmental regulations, including Clean Water Act permitting. "It's a narrow category of cases," said criminal law expert Ryan Scott, an associate professor at Indiana University's Maurer School of Law....

Supreme Court watchers are unsure how the court will rule, in large part because there are four serving justices who were not on the court when Apprendiwas decided and two -- Justice Elena Kagan and Justice Sonia Sotomayor -- have been appointed since Ice was decided.  As Scott put it, it is an "unusually difficult one to guess."

I share Professor Scott's view that predicting an outcome, or even the votes of  particular justices, in Southern Union is unusually difficult.  I can make a plausible prediction that Southern Union could possibly win 9-0 because I doubt that the Court's still-remaining Apprendi dissenters (Justices Breyer and Kennedy) will be distinctly eager to prevent Apprendi's extension into this arena.  And yet, in Ice, a one-time (though fickle) Apprendi supporter, Justice Ginsburg, wrote a broad opinion for the Court limiting Apprendi's reach and suggesting that she (as well as Justice Alito, who was another key swing vote in Ice) may be increasingly concerning about what could happen if Apprendi rights were extended into new sentencing settings.  If Justice Ginsburg remains very concerned about the expanding the borders of Apprendi-land, I could imagine her (perhaps with the help of the Apprendi-haters) seeking to persuade some of the new Justices to draw another line in the jurisprudential sand here.

As my post title suggests, I am very eager to hear from readers concerning their perspectives on the Southern Union case in particular and on Apprendi jurisprudence more generally now that it is a full dozen years since the Sixth Amendment started playing a big role in sentencing law and policy.

Some recent related posts:

March 15, 2012 in Blakely Commentary and News, Blakely in the Supreme Court, Criminal Sentences Alternatives, Who Sentences? | Permalink | Comments (14) | TrackBack

Tuesday, January 17, 2012

Top-side brief in Southern Union explains why Sixth Amendment Apprendi rule applies to fines

All Apprendi/Blakely fans (and, for that matter, all Apprendi/Blakely haters) will want to check out this SCOTUS merits brief from the petitioner in Southern Union v. US, which was filed last week.  Here is the start of the brief's statement of the case

This case raises the question whether the principle that this Court recognized and applied to sentences of incarceration in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, applies equally to the imposition of criminal fines.  At the outset, the Court might wonder what the argument could be that the Apprendi principle does not apply to criminal fines, given that this Court’s explicit holding in Apprendi was that any fact that increases the “penalty” for a crime must be submitted to the jury and proved beyond a reasonable doubt, and criminal fines are unquestionably “penalties.”  Indeed, prior to the decision below, federal and state courts uniformly held (or assumed) that Apprendi applies to the imposition of criminal fines.  Even the United States agreed that the Apprendi principle applies to fines.

The decision below is the first to hold otherwise.  It did so based on the court of appeals’ view that this Court’s opinion in Oregon v. Ice, 555 U.S. 160 (2009), announced a whole new methodology that fundamentally narrowed the Apprendi doctrine and also suggested that a court can use non-jury fact-finding to impose a fine that exceeds the maximum fine set by the legislature, which is what happened in this case.  As shown below, this reading of Ice, a case which did not involve a criminal fine, is fundamentally flawed and ignores the fact that Ice was an exceedingly narrow ruling.  In particular, the court of appeals’ historical understanding was at a minimum incomplete, and in all events did not support its conclusion that fines are outside the scope of Apprendi.

This Court should reverse the court of appeals’ holding because it would deprive criminal defendants of their fundamental jury trial rights in cases involving fines, and should vacate the fine imposed in this case (which was 360 times greater than that authorized by the jury’s verdict).

Many hard-core Apprendi/Blakely fans were justifiably puzzled by Ice, and this new case presents the Court with its first opportunity to explain if and how Ice was meant to recast the Apprendi/Blakely Sixth Amendment rules.  Also, Southern Union will present the first crisp opportunity for the two newest Justices to indicate how they view Apprendi/Blakely Sixth Amendment rules, which could of course have profound long-term implications for all sorts of punishments beyond fines.

January 17, 2012 in Blakely Commentary and News, Blakely in the Supreme Court, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, September 07, 2011

More than a decade later, has Justice Breyer finally accepted Apprendi?

The question in the title of this post is prompted by the latest great Sidebar piece in the New York Times by Adam Liptak.  The piece is headlined "When Perpetual Dissent Removes the Blindfold," and this portion of the piece prompts the question I pose here:

Once an issue is decided, it is the law, and a justice on the losing side the first time around is obligated to follow the decision except in extraordinary circumstances. Yet the opposite approach is common. Whether as a matter of principle, pique or personal privilege, justices often assume that an initial dissent permits them to stick to their positions indefinitely, or at least for a long time.

In 2002 [in Harris], for instance, Justice Stephen G. Breyer acknowledged that the logic of a decision from which he had dissented two years before, Apprendi v. New Jersey, required juries, not judges, to determine the facts supporting some mandatory sentences. But, Justice Breyer wrote, “I cannot yet accept” the earlier decision.

By last year, Justice Breyer’s position seemed to be softening.  “Well, at some point I guess I have to accept Apprendi, because it’s the law and has been for some time,” he said at an argument [in O'Brien].

On Sept. 26, the justices will decide which of the thousands of appeals that have piled up over the summer are worth their time. Among them is yet another case on the issue Justice Breyer was discussing.

It involves Jennifer Lynn Krieger, who pleaded guilty to giving a pain-medicine skin patch to a friend. The friend, Jennifer Ann Curry of West Frankfort, Ill., died after chewing the patch and taking an assortment of other drugs. The average sentence for a first-time offender who admits to distributing drugs like the one in the patch is seven months. The mandatory minimum sentence when “death results,” though, is 20 years.

Ms. Krieger was not charged with causing her friend’s death. She denied doing so, and no jury ever addressed that question. But Judge J. Phil Gilbert of the Federal District Court in Benton, Ill., looked at the evidence on this point in connection with sentencing Ms. Krieger and found it more likely than not that Ms. Curry’s death had been caused by the patch.

Judge Gilbert went on to say that he would have ruled differently had the government been required to prove beyond a reasonable doubt that the patch had caused Ms. Curry’s death. Reasonable doubt is, of course, the standard that juries are instructed to use in criminal trials.

Judge Gilbert did not seem happy about where all of this left him. He said he was required to impose the 20-year sentence even though it was “unduly harsh.”  

“One cannot escape the conclusion that Krieger, while convicted of distribution” of drugs, he wrote, “is being sentenced for homicide.”  

An appeals court upheld the decision even as it noted that the law in this area hangs by a “precariously thin” thread, partly because “Justice Breyer’s dedication to his position” in the 2002 case “may be waning.”

I have previously noted the remarkable Kreiger case in this post, and I would not be at all surprised if the Supreme Court takes up the case.  And yet, as they did last year in the O'Brien case, the Justices could (and very well might) effectively dodge direct consideration of Apprendi and Harris and Blakely constitutional issues by ruling for the defendant on statutory interpretation grounds.

Related posts:

September 7, 2011 in Blakely Commentary and News, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

Thursday, July 21, 2011

Effective discussion of Apprendi's application to corporate fines

Thanks to this post at White Collar CrimProf Blog, I see that a District Court in California has issued an interesting and effective opinion in United States v. Au Optronics Corporation, No. C 09-00110 SI (N.D. Cal. July 18, 2011) (available here), concerning tha application of Apprendi to corporate fines.  Here are snippets from the ruling:

In light of the fact that the maximum fine in this case will depend upon proof of the gain or loss caused by the conspiracy, the government seeks two related orders from the Court. First, claiming that evidence of the effects of the alleged antitrust conspiracy is irrelevant to the defendants’ guilt, the government requests that the Court bifurcate the trial into a guilt phase and a penalty phase. Second, claiming that criminal fines are exempt from the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), the government seeks an order that the evidence presented in the penalty phase need not be presented to a jury....

Until recently, there would have been little reason to doubt Apprendi’s applicability to fines. Two circuits had applied Apprendi’s holding to criminal fines....[But] last year the First Circuit held that criminal fines were exempt from Apprendi’s rule [based on dicta in the Supreme Court's Ice decision]....

The government argues that this Court should follow the First Circuit.   Relying largely on the same reasoning as the First Circuit, it contends that under historical practices fines fell within the sole discretion of the trial judge....   The government argues that this historical practice renders Apprendi inapplicable to the fines in this case.

The Court is unconvinced.   As an initial matter, the Supreme Court’s statement in Ice is dicta, made without the benefit of briefing or argument in a case whose facts do not remotely resemble the facts of this case.   While, of course, Supreme Court dicta is compelling, losing sight of Apprendi’s mandate based upon one clause in Ice risks losing the forest for the trees.....

The fine in this case is the primary form of punishment the government seeks and could amount to as much as $1 billion, ten times more than the fine authorized by the Sherman Act.  The magnitude and primacy of such punishment puts it in a separate class from an ordinary criminal fine imposed against a defendant who faces incarceration. In the Court’s view, this is reason enough to apply Apprendi’s mandate and require a jury to find the amount of gain or loss under the alternative fines statute.

The historical practices the government has cited simply do not seem well suited for the situation before the Court, where incarceration -- or whippings, for that matter -- is not a penalty the Court can impose.   The Sherman Act authorizes a maximum fine of $100 million.   Should the government wish to go beyond that act’s authorization and seek a significantly larger fine based upon the establishment of additional facts, it must do so by following Apprendi’s mandate, and by proving those facts to a jury beyond a reasonable doubt.

July 21, 2011 in Blakely Commentary and News, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, October 20, 2010

New Mexico Supreme Court rejects Apprendi/Blakely challenge to judicial findings for enhanced juve sentencing

As detailed in this brief local AP article, the New Mexico Supreme Court "has ruled it's constitutional for a judge to determine whether juvenile offenders can be sentenced as adults for certain violent crimes." Here are the basics:

The justices issued a 4-1 ruling on Tuesday overturning a 2009 decision by the state Court of Appeals, which held that a jury rather than a judge should make the sentencing decision.  Justice Edward Chavez dissented, saying juvenile offenders are entitled to the same constitutional jury protections given to adults.

At issue is a sentencing procedure for "youthful offenders" --- those 14 to 18 years old found guilty of violent felonies, including second-degree murder and robbery.  Judges can impose adult sentences only if they determine an offender is not amenable to treatment in the juvenile justice system.

I have not yet been able to find a copy of this ruling on-line, but I will post it when I do.  Depending on the particulars, this case might serve as an interesting vehicle for taking a long-simmering, and quite interesting, post-Apprendi-Blakely issue up to the U.S. Supreme Court.

UPDATE: The full opinion from the NM Supreme Court is now available at this link.

October 20, 2010 in Blakely Commentary and News, Blakely in the States, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, September 03, 2010

"Of Rebels, Rogues and Roustabouts: The Jury's Second Coming"

The title of this post is the title of this new piece from Professor Jenny Carroll now appearing on SSRN.  As its abstract reveals, this paper would be a timely read for anyone eager to think about the labors of juries during this Labor Day weekend:

This article examines the role of the jury in a post-Apprendi justice system.  Apprendi and its progeny recognize the vital role the jury plays in establishing the legitimacy of criminal convictions and sentences.  I contend that the Apprendi line confirms the jury’s responsibility, as representatives of the community, to give the law meaning in their determination of criminal culpability.  In this, Apprendi seeks to restore the original role of the jury as the bridge between the law itself and the community the law seeks to regulate. 

This restoration is incomplete, and the jury’s true significance cannot be realized, without a recognition of the jury’s original right to judge law as well as fact.  Only through the revitalization of this power to nullify can the jury assume its intended role and provide community sanction to the designation of criminal culpability.  I conclude that democracy, and indeed the underlying goals of the criminal justice system, are best served when criminal processes allow forums for dissenting perspectives and juries are allowed to assess both the legal and factual bases of guilt.

September 3, 2010 in Apprendi / Blakely Retroactivity , Blakely Commentary and News, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (30) | TrackBack

Tuesday, June 29, 2010

"Civil, Criminal, or Mary Jane: Stigma, Legislative Labels, and the Civil Case at the Heart of Criminal Procedure"

The title of this post is the title of this new piece on SSRN by Professor W. David Ball. David always has interesting stuff to say about the Supreme Court's Apprendi jurisprudence, and the abstract to this article spotlights this fact:

In criminal cases, any fact which increases the maximum punishment must be found by a jury beyond a reasonable doubt.  This rule, which comes from Apprendi v. New Jersey, looks to what facts do, not what they are called; in Justice Scalia’s memorable turn of phrase, it applies whether the legislature has labeled operant facts “elements, enhancements, or Mary Jane.”  Civil statutes, however, can deprive an individual of her liberty on identical facts without needing to meet the beyond a reasonable doubt standard of proof.  If Apprendi is, indeed, functional, why is it limited to formally criminal cases?  Why does it not apply to all punishments, no matter whether they are called civil, criminal, or Mary Jane?

One often-proposed answer is that Apprendi derives its holding exclusively from the Sixth Amendment, and the Sixth Amendment applies only to “criminal prosecutions.”  Apprendi is not, however, just a Sixth Amendment case.  Its “beyond a reasonable doubt” requirement comes from due process -- specifically, from a formally civil case, In re Winship, which explicitly rejects the idea that civil labels can insulate a state from heightened procedural obligations.  Apprendi’s application cannot, therefore, be limited on formal grounds to criminal cases.  To determine the limits of its application, one must instead return to the interests that both Winship and Apprendi identify as worthy of protection: the imposition of stigma and the deprivation of liberty.

This Article examines the due process roots of the Apprendi line and proposes that stigma is the substantive concern that separates retribution from regulation, punishment from public safety.  Using sociology’s modified labeling theory, I provide a substantive definition of stigma and explore how a unified due process approach, with stigma at its heart, might provide a more meaningful way to separate punishment from risk management.  This approach would move judicial discourse away from empty, taxonomic arguments about legislative labels towards an examination of the effects laws have on the lives of those subjected to them, a conversation which would more accurately and comprehensively address the values and interests at the heart of the justice system.

June 29, 2010 in Blakely Commentary and News, Criminal Sentences Alternatives, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, May 24, 2010

Notable statutory interpretation embrace of a basic offense/offender distinction for elements and sentencing factors

As long-time readers or hard-core sentencing fans may know, when I was first trying to make sense of Blakely, I was drawn to distinguishing between offense conduct and offender characteristics in the application of Apprendi's "bright-line rule."  I first developed this idea in my Conceptualizing Blakely article, advanced it in a StanfordLaw Review article, and further unpacked it (with Stephanos Bibas) in Making Sentencing Sensible article in the Ohio State Journal of Criminal Law.  As explained in Conceptualizing Blakely, I believe an offense/offender distinction helps give conceptual content to the prior conviction exception, better links the Apprendi rule to the express text of the Constitution, and resonates with the distinctive institutional competencies of juries and judges.

As detailed in this post right after the Supreme Court's 2007 Sixth Amendment ruling in Cunningham v. California, Justice Kennedy's dissenting opinion in Cunningham praised an offense/offender distinction as providing a "principled rationale" for the application of the Apprendi rule: "The Court could distinguish between sentencing enhancements based on the nature of the offense, where the Apprendi principle would apply, and sentencing enhancements based on the nature of the offender, where it would not."  But Justice Kennedy was writing in dissent and footnote 14 of Justice Ginsburg's majority opinion in Cunningham  asserts that "Apprendi itself ... leaves no room for the bifurcated approach Justice Kennedy proposes."

Against this backdrop, I found especially interesting and notable this passage from the Court's opinion today in O'Brien (which just happens to be authored by Justice Kennedy):

Sentencing factors traditionally involve characteristics of the offender — such as recidivism, cooperation with law enforcement, or acceptance of responsibility.  [Castillo, 530 U.S.] at 126. Characteristics of the offense itself are traditionally treated as elements, and the use of a machinegun under §924(c) lies “closest to the heart of the crime at issue.” Id., at 127.

As the cites reveal, the Supreme Court made a somewhat similar set of statements a decade ago in its Castillo ruling.  But this O'Brien articulation of an offense/offender distinction for statutory interpretation purposes seems especially crisp and clean here.  Perhaps in the future Justice Kennedy might be able to get a few of the new Justices to give this distinction constitutional significance in some future elaborations of the Apprendi/Blakely line of decisions.

May 24, 2010 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

SCOTUS in O'Brien preserves (for now) McMillan precedent (to Justice Stevens' chagrin)

Based on a quick review of all of today's SCOTUS action, the biggest news for hard-core sentencing fans seems to be the continued preservation of the McMillan/Harris mandatory minimum "exception" to Apprendi/Blakely Sixth Amendment rule by virtue of the Supreme Court's decision to decide the O'Brien case for the defendants on statutory grounds.  Justice Stevens, in what may serve as his last word on the Apprendi/Blakely Sixth Amendment jurisprudence make this final statement at the end of his notable separate (and solo) concurrence:

In my view, the simplest, and most correct, solution to the case before us would be to recognize that any fact mandating the imposition of a sentence more severe than a judge would otherwise have discretion to impose should be treated as an element of the offense. The unanimity of our decision today does not imply that McMillan is safe from a direct challenge to its foundation.

But the fact that nobody signed on to retiring Justice Stevens' separate opinion in the O'Brien case may, in fact,  imply that McMillan is going to remain safeguarded from a direct challenge to its foundation for perhaps a long time.

May 24, 2010 in Blakely Commentary and News, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Friday, May 14, 2010

Texas jury returns life sentence based on unconvicted and uncharged conduct

A helpful reader forwarded to me this fascinating local sentencing story out of Texas.  The report is headlined "Prieto gets life in prison for beating," and here are the details:

Enrique Prieto could have walked out the courthouse door a free man, but instead he is going to prison for life. A Lubbock County jury sentenced Prieto, 41, to life in prison for robbing and beating an elderly man in September 2008.

Prieto on Monday pleaded guilty to the aggravated robbery of then-71-year-old Danny Moore, who he beat with a saw and pipe before taking his wallet and truck. "With a life sentence and maximum fine, justice was served to this defendant for what he did in this case," prosecutor Jaret Greaser said....

Prieto was eligible for probation because he had never been convicted of a felony, but he did have multiple felony charges pending against him.

Prosecutors spent three days essentially trying to prove those charges to jurors in hopes they would levy the maximum penalty for the aggravated robbery. Jurors heard evidence that Prieto burglarized another home while out on bond.

Perhaps the nail in Prieto's coffin was the testimony from one of his daughters, who said he raped her from the time she was 6 or 7 years old until she was 13 years old.

Prieto's wife testified the girl's story was improbable because she would have known if Prieto was abusing their daughter, but a sexual assault nurse said the girl had penetrating injuries consistent with a history of long-term abuse.

Prosecutors told jurors in closing arguments to focus on all the charges against Prieto. "This case is so much more than just that aggravated robbery," assistant district attorney Mandi Say said....

The jury deliberated for a little more than an hour before returning the life sentence.

This little story has so many interesting elements, I could imagine structuring an entire seminar focused on the question about whether this case vindicates or eviscerates the constitutional principles developed in Apprendi and Blakely

If we think the most important constitutional principles of Apprendi and Blakely concern ensuring that a jury of peers, rather than just an "elite" judge, be involved in determining sentencing outcomes, then one might conclude that these Sixth Amendment interests were vindicated in this case.  But I tend to read Blakely and especially Apprendi as expressing concerns about sentences being increased based on facts not found by traditional due process standards. 

I suspect that at least some members of the Apprendi and Blakely majorities would be troubled by how Prieto got a life sentence.  Moreover, I suspect even some members of the Apprendi and Blakely dissents might be a bit worried as to whether Fifth Amendment due process interests were fully served here (especially if Prieto did not get advance notice that his sentencing on the aggravated robbery conviction was going to be a essentially a trial and sentencing on his daughter's allegations of rape).  And, of course, three members (and soon to be four) members of the current Supreme Court were not Justices at the time of Apprendi and Blakely and thus we can only speculate about what they may think about how Prieto got a life sentence here.

May 14, 2010 in Blakely Commentary and News, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (36) | TrackBack

Tuesday, May 04, 2010

Lengthy split Seventh Circuit panel ruling on ACCA and juve predicates

A split Seventh Circuit panel has an interesting (and quite lengthy) discussion of proper application of the Armed Career Criminal Act and of use of juvenile prior to trigger ACCA's increased sentenced.  The majority opinion in Welch v. US, No. 08-3108 (7th Cir. May 4, 2010) (available here), gets started this way:

In 2005, Devin Welch pleaded guilty to unlawful possession of a firearm by a felon. He then brought a motion under 28 U.S.C. § 2255 to vacate his sentence. The district court denied the § 2255 motion in pertinent part. We granted a certificate of appealability to address two of Mr. Welch’s contentions. First, he submits that his prior conviction for the Illinois crime of aggravated fleeing or attempting to elude a police officer cannot qualify as a “violent felony” within the meaning of the Armed Career Criminal Act (“ACCA”).  Second, he submits that his prior juvenile adjudication cannot be used to enhance his sentence beyond the statutory maximum because it was not obtained by a jury trial. For the reasons set forth in this opinion, we affirm the judgment of the district court.

A forceful dissent authored by Judge Posner assails the majority's conclusions on both grounds, and it includes an especially interesting discussion of Apprendi prior conviction issues.  Here is how that discussion concludes:

Of particular relevance to Apprendi, the literature finds that judges are more likely to convict in juvenile cases than juries are.  They are exposed to inadmissible evidence; they hear the same stories from defendants over and over again, leading them to treat defendants’ testimony with skepticism; they become chummy with the police and apply a lower standard of scrutiny to the testimony of officers whom they have come to trust; and they make their decisions alone rather than as a group and so their decisions lack the benefits of group deliberation.  It would be hasty to conclude that juvenile court judges are more prone to convict the innocent than juries are.  But if it is true that juvenile defendants fare worse before judges than they would before juries — if there is reason to think that trial by jury would alter the outcomes in a nontrivial proportion of juvenile cases — one cannot fob off the Apprendi argument with the observation that a jury makes no difference.

Only the Supreme Court can decide authoritatively what its decisions mean.  But the government’s inability to give a reasoned basis for that position is telling, and the better view, I believe, is that a juvenile court “conviction” is not usable for enhancing a federal sentence.

May 4, 2010 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News | Permalink | Comments (1) | TrackBack

Wednesday, April 28, 2010

Is anyone still preserving Apprendi/Blakely challenges to judge-determined restitution awards?

Thanks to the Supreme Court deciding only civil cases this week, I have finally found time to read the argument transcript from last week's SCOTUS oral argument in Dolan v. US (which is available at this link).  There are lots of interested aspect of the Dolan transcript ranging from frequent discussion of what is a final sentence to the potential impact of the 3553(a)'s requirement that district judges consider the need for restitution. 

But one particular line from the start of one of Justice Scalia's questions to the Government prompts my question in the title of this post.  Specifically, on page 31 of the Dolan transcript, Justice Scalia starts a line of questioning by saying "I think it's bad enough to have the issue of whether this victim suffered $100,000 damages decided by the judge...."  In addition, on pages 51-52 of the Dolan transcript Justice Scalia suggest with another line of questions that he is troubled by the fact that "it's the judge who finds that the victim suffered so much money" and that the judge does not use a beyond a reasonable doubt standard when making this finding.

In other words, it appears that Justice Scalia remains quite concerned that the constitutional requirements imposed on sentencing determinations in Apprendi and Blakely are not being applied with respect to the fact-finding involved in the setting of criminal restitution awards.  Thus, despite the fact that every circuit has rejected arguments to apply Apprendi and Blakely to restitution awards, there is at least one Justice (and perhaps there are more) who might be eager to give some new life to these kinds of claims.

I fear that few defendants even try to preserve Apprendi/Blakelychallenges to judge-determined restitution awards since these claims never got any real traction in lower courts after Blakely.  But the Dolan transcript suggests that perhaps these claims ought still be preserved and pressed all the way up to the Justices.

April 28, 2010 in Blakely Commentary and News, Blakely in the Supreme Court, Criminal Sentences Alternatives, Procedure and Proof at Sentencing | Permalink | Comments (9) | TrackBack

Friday, April 23, 2010

Questionable(?) DC Circuit ruling on safety-valve burden of proof

The DC Circuit has a very intriguing little opinion this morning in US v. Gales, No. 08-3040 (DC Cir. Apr. 23, 2010) (available here), concerning burdens of proof and eligibility for statutory safety valve relief from an applicable mandatory minimum sentencing term.  At issue in Gales is whether the defendant satisfied the safety valve requirement to truthfully provide all information about his offense: the defendant claimed he did, prosecutors claimed he did not.  After saying it was not clear error for the district court to not believe the defendant, the DC Circuit has to respond to these claim by the defendant about the applicable burdens of proof:

Gales contends that the district court “misunderstood and misapplied” the burden of proof under the safety valve provision, claiming that after the government expressed its doubts to the district court about Gales’ story concerning his drug supplier, the district court shifted the burden of proof to Gales to prove that he had not lied.  Gales argues that such an “impossibly high burden” is not imposed by the law.  Instead he claims that once he made a credible showing that his story was truthful and complete, it was the government’s burden to present evidence showing otherwise....

Gales [further] contends that when the district court stated that the way the safety valve works is for Gales to give the government “the answer they want,” the court was giving the government the same discretion it has pursuant to the Sentencing Guidelines’ substantial assistance provision, U.S.S.G. § 5K1.1.  That is, the district court was allowing the government to prevent him from receiving relief under the safety valve.  According to Gales, this was not Congress’ intent.

Relying on the Circuit's (pre-Blakely) precedent, the panel in Galesrejects the contention that there is any problem with placing the burden on the defendant to establish "his story was truthful and complete."  In other words, the defendant here gets subject to a 5-year mandatory minimum especially because he could not satisfy his burden of proving that "his story was truthful and complete."  

As my quick reference to Blakely above is meant to suggest, there could be possible constitutional arguement (based in the Fifth Amendment more than the Sixth Amendment) against an interpretation of a statutory scheme that functionally increases the defendant's sentence because he fails to prove his admissions of guilt were truthful and complete.  More fundamentally, I think constitutional doubt and rule of lenity statutory construction principles suggest, at least to me, that the proof burden should be on the government in this kind of setting.

April 23, 2010 in Blakely Commentary and News, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

Wednesday, February 24, 2010

Oral argument transcript finally available for in O'Brien/Burgess case

I am pleased to finally be able to report that the Supreme Court now has posted here the transcript for Tuesday morning's oral argument in United States v. O'Brien and Burgess, the combined cases concerning the application of the machine-gun mandatory minimum sentencing enhancement of 18 U.S.C. § 924(c).  I have heard from multiple source that Blakely fans will want to give this a close read, and that's my plan as I jump on a plane this afternoon to head to Miami (more on that later).  I hope to have comments on the argument in a future post, but I hope readers do not wait for me to opine on this argument's merits (or demerits).

Some recent related posts:

February 24, 2010 in Blakely Commentary and News, Blakely in the Supreme Court, Mandatory minimum sentencing statutes | Permalink | Comments (7) | TrackBack

Friday, February 19, 2010

"Deciding When To Decide: How Appellate Procedure Distributes the Costs of Legal Change"

The title of this post is the title of this notable new piece from Professor Aaron-Andrew P. Bruhl that should be of extra interest to Blakely and Booker fans, as evidenced by this abstract:

Legal change is a fact of life.  The need to deal with legal change has spawned a number of complicated bodies of doctrine.  Some of these issues have been studied extensively, such as doctrines concerning the retroactivity of new law and the question whether inferior courts can anticipatorily overrule a moribund superior court precedent.  How such questions are answered affects the size and the distribution of the costs of legal change.  Less appreciated is the way that heretofore almost invisible matters of appellate procedure and case handling also allocate the costs of legal transitions. In particular, this Article focuses on lower courts’ discretionary decisions about when to decide the cases that come before them: should lower courts continue to decide cases in the regular course even when a change in law is in the offing, or should they delay adjudication until after the dust has settled?

The Article has both positive and normative aspects. It begins by drawing together several bodies of doctrine in order to present a unified account of what we can call our system’s law of legal change. The Article then presents a case study of the six-month interval between Blakely v. Washington, which invalidated a state sentencing scheme and cast substantial doubt on federal sentencing guidelines, and United States v. Booker, which then held Blakely applicable to the federal system. A majority of the appellate courts that addressed the question upheld the federal guidelines during this transitional interval.  Beneath the surface, however, the various courts upholding the guidelines managed cases very differently.  Some circuits bore much of the cost of legal change themselves, while others shifted some of the cost to litigants and other courts.

Based on the insights gleaned from this episode, I suggest a framework for evaluating and perhaps improving how courts process cases during transitional periods.  Case-management decisions are highly context-specific, which makes it difficult and perhaps undesirable to formulate general rules, but we might be able to improve courts’ handling of such matters by altering the institutional environment and modifying incentives.

February 19, 2010 in Blakely Commentary and News, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, November 10, 2009

Brief Sixth Circuit opinion rejects Blakely challenge to Michigan sentencing system

This morning the Sixth Circuit issued a short opinion in Chontos v. Berguis, No. 08-1031 (6th Cir. Nov. 10, 2009) (available here), in which the panel concludes that Michigan's distinctive structured sentencing scheme does not have a Blakely problem.  I have taken the liberty of reprinting some critical comments about this ruling from an e-mail sent my way by a helpful reader:

As detailed in this article appearing now as Mandatory Sentencing Guidelines by Any Other Name: When 'Indeterminate Structured Sentencing' Violates Blakely v. Washington, 57 Drake L. Rev. 643 (2009), the issue is a lot more complicated than the Sixth Circuit panel assumed today, and deserves a lot more attention.  Michigan does not have an "indeterminate" sentencing scheme, at least not as the Supreme Court has used that term.  Further, Harris does not save the Michigan scheme because Michigan's mandatory guidelines regularly raise the ceiling on judges' discretion, not just the floor.  In short, Michigan's scheme doesn't deserve the free pass that the Sixth Circuit just handed out.

November 10, 2009 in Blakely Commentary and News, Blakely in the States, Sentences Reconsidered | Permalink | Comments (8) | TrackBack

Monday, November 02, 2009

A potent pitch for potent jury power after Apprendi

This new article by Jenny Carroll available via SSRN, which is titled ""Of Rebels, Rogues and Roustabouts: The Jury's Second Coming," makes a robust pitch for giving juries even more power in a post-Apprendi world.  Here is the article's abstract:

This article examines the role of the jury in a post-Apprendi justice system.  Apprendi and its progeny recognize the vital role the jury plays in establishing the legitimacy of criminal convictions and sentences.  I contend that the Apprendi line confirms the jury’s responsibility, as representatives of the community, to give the law meaning in their determination of criminal culpability.  In this, Apprendi seeks to restore the original role of the jury as the bridge between the law itself and the community the law seeks to regulate.  This restoration is incomplete, and the jury’s true significance cannot be realized, without a recognition of the jury’s original right to judge law as well as fact.  Only through the revitalization of this power to nullify can the jury assume its intended role and provide community sanction to the designation of criminal culpability.  I conclude that democracy, and indeed the underlying goals of the criminal justice system, are best served when criminal processes allow forums for dissenting perspectives and juries are allowed to assess both the legal and factual bases of guilt.

November 2, 2009 in Blakely Commentary and News, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

Monday, October 19, 2009

Are Apprendi and Blakely Justice Stevens' most favorite opinions?

This morning's USA Today includes this lovely front-page articleby Joan Biskupic about Justice Stevens. The piece, which is headlined "Supreme Court's Stevens keeps cards close to robe; Long-serving justice, 89, a force behind the scenes," is a must-read for all SCOTUS fans.  But sentencing fans might take particular note of this line reporting on what Justice Stevens' said during Biskupic's recent interview:

On opinions he finds noteworthy, he cited cases in which he crafted a narrow majority to enhance the role of juries in criminal sentencing.

Of course, the cases referenced here have to be his own 2000 Apprendi decision and the 2004 Blakely decision (which was authored by Justice Scalia, of course).  

The fact that Justice Stevens would make special mention of Apprendi and Blakely in this recent interview leads me to two questions, one backward looking and one forward looking: (1) if Justice Stevens remains proud of his work in Apprendi andBlakely, just why did he end up providing the key fifth vote to limit the reach of this jurisprudence in last Term's Ice case?, and (2) in light of his apparent affinity for Apprendi and Blakely, might Justice Stevens work extra hard this Term (which likely will be his final Term) to reverse the Harris mandatory minimum exception to Apprendi?

Some related recent posts:

October 19, 2009 in Blakely Commentary and News, Blakely in the Supreme Court, Who Sentences? | Permalink | Comments (13) | TrackBack

Thursday, September 10, 2009

"Debacle: How the Supreme Court Has Mangled American Sentencing Law And How It Might Yet Be Mended"

The title of this post is the title of this new article on SSRN from Professor Frank Bowman. I consider everything Frank writes to be a must-read, but this 100-page magnum opus seems especially worthy of attention.  Here is the abstract:

This Article argues that the line of Supreme Court Sixth Amendment jury right cases that began with McMillan v. Pennsylvania in 1986, crescendoed in Blakely v. Washington and United States v. Booker in 2004-2005, and continued in 2009 in cases such as Oregon v. Ice, has been a colossal judicial failure.  First, the Court has failed to provide a logically coherent, constitutionally based answer to the fundamental question of what limits the Constitution places on the roles played by the institutional actors in the criminal justice system.  It failed to recognize that defining, adjudicating and punishing crimes implicates both the Sixth Amendment jury clause and the Fifth and Fourteenth Amendment due process clauses, and it has twisted the jury clause into an insoluble logical knot.  Second, the practical effect of the Court’s constitutional bungling has been to paralyze the generally beneficial structured sentencing movement, with the result that promising avenues toward improved substantive and procedural sentencing justice have been blocked.  Even the most widely-applauded consequence of the Apprendi-Booker line, the transformation of the federal guidelines into an advisory system, proves on close inspection to be a decidely mixed blessing . The Court has made the Constitution not a guide, but an obstacle, to a desirable distribution of authority among the criminal justice system’s institutional actors. The Article provides a comprehensive constitutional analysis of all the opinions in the McMillan-Apprendi-Blakely-Booker-Ice line, as well as an assessment of the practical impact of these cases on both federal and state sentencing systems.  In addition, the article uses its careful dissection of the defects in the Court’s Sixth Amendment sentencing decisions to develop an alternative constitutional analysis that combines Sixth Amendment and due process principles. Finally, the article suggests that the elevation of Judge Sonia Sotomayor to the Supreme Court may provide the occasion for the Court to rethink its sentencing cases and move toward a more intellectually coherent and practically desirable constitutional sentencing jurisprudence.

September 10, 2009 in Blakely Commentary and News, Recommended reading | Permalink | Comments (19) | TrackBack

Tuesday, June 24, 2008

Is Blakely showing its age as it turns four?

Today marks the four-year anniversary of the Supreme Court's profoundly important constitutional ruling in Blakely v. Washington.  Its jurisprudential godfather, Apprendi v. New Jersey, will turn eight on Thursday.  Both merit re-reading as a fitting celebration of their birth and jurisprudential development.

Though my first post on the Blakely case, headlined "Blakely..... WOW!!", still captures my feelings about the ruling, the passage of time has me rethinking my assertion in this July 2004 Slate commentary that "Blakely is the biggest criminal justice decision not just of this past term, not just of this decade, not just of the Rehnquist Court, but perhaps in the history of the Supreme Court."  (Notice that I included the term "perhaps," ever aware that I might later need to back-track from such an extreme assertion.)

Of course, the profound significance of Blakely on day-to-day criminal justice realities is still evident to anyone practicing in federal courts or in the dozens of other jurisdictions that have had their sentencing laws modified (or transmogrified) because of Blakely.  Still, back in summer 2004, I really thought — perhaps hoped — that the Blakely Five, given the broad language and strong themes of the Blakely majority opinion, were prepared and eager to champion, through additional major constitutional rulings, the traditional adversarial procedures that Blakely extolled in a wide array of sentencing contexts. 

Specifically, I expected the Blakely Five to take up quickly Sixth Amendment challenges to judicial fact-finding in diverse sentencing settings — e.g., revoking supervised release, ordering restitution.  I also thought that the Blakely Five might be eager to reconsider the prior-conviction and mandatory minimum exceptions to the Apprendi principle.  In 2004, I also believed that the Fifth Amendment holding and due process principles implicit in Blakely might find broad expression in all various sentencing settings (and I certainly did not expect to be still fighting uphill battles in lower courts against sentencing enhancements based on acquitted conduct).

Four years later, however, as lower courts continue to cabin the reach and impact of Blakely (as highlighted by a Tennessee high court ruling just today), it is hard to notice any continuing aftershocks of the Blakely earthquake.  One obviously explanation, of course, is that the Booker advisory remedy provided a relatively easy "out" for the federal system and others dealing with the constitution complications Blakely created for structured sentencing systems.  But, perhaps even more significantly, the Justices' apparent disinclination in the last four years to consider Blakely-expanding claims made by defendants has sent a clear (and intended?) signal to lower courts that the Justices are generally disinclined to follow-up on Blakely in any dramatic way.

June 24, 2008 in Blakely Commentary and News | Permalink | Comments (7) | TrackBack

Friday, May 30, 2008

The true back-story of the Blakely-Booker jurisprudential mess?

Though it makes no mention of sentencing jurisprudence, this new piece up on SSRN develops a theory that may help explain how and why the Apprendi-Blakely-Booker line of cases has produced such a doctrinal mess.  The piece by Ben Barton is titled "Judges, Lawyers, and a Predictive Theory of Legal Complexity," and here is the abstract:

This Article uses public choice theory and the "new institutionalism" to discuss the incentives, proclivities, and shared backgrounds of lawyers and judges. In America every law-making judge has a single unifying characteristic, each is a former lawyer.  This shared background has powerful and unexplored effects on the shape and structure of American law.  This Article argues that the shared characteristics, thought-processes, training, and incentives of Judges and lawyers lead inexorably to greater complexity in judge-made law.  These same factors lead to the following prediction: judge-created law will be most complex in areas where a) elite lawyers regularly practice; b) judges may have a personal preference in the case that can be written-around by way of legal complexity; and c) the subject area interests the judge, or is generally considered prestigious.  The Article uses the law of standing as a case study.

May 30, 2008 in Blakely Commentary and News | Permalink | Comments (7) | TrackBack

Tuesday, October 30, 2007

A guide to Apprendi issues for courtroom practitioners

Bruce Cunningham, Heather Rattelade and Amanda Zimmer have a new article (available here from SSRN) entitled "Apprendi/Blakely: A Primer for Practitioners." Here is the abstract:

The purpose of this article is to explore some of these complex Apprendi/Blakely issues in a manner which is useful for the courtroom practitioner.  The implications of Apprendi/Blakely are largely uncharted territory and some of the opinions expressed in this article have not been addressed by any appellate court. In some instances, there are North Carolina appellate decisions which the authors contend are inconsistent with the basic premise of the Sixth Amendment line of cases.  The article is intended to broaden the view of Apprendi/Blakely to include concepts that extend far beyond sentencing.

The article is divided into three parts and is geared toward the trial, appellate, and postconviction lawyer. Part I is devoted to a discussion of the historical context of Apprendi/Blakely and the basic conceptual underpinnings of the Supreme Court's Sixth Amendment line of cases.  Part II presents a framework for analyzing Apprendi/Blakely issues arising under the Structured Sentencing Act.  Part III, appearing in a later volume of the North Carolina Central University Law Journal, will deal exclusively with capital litigation and the Sixth Amendment line.

In an e-mail to me, one of the authors has said: "I hope some trial lawyers from the Blakely compliant states will comment."

October 30, 2007 in Blakely Commentary and News | Permalink | Comments (3) | TrackBack

Wednesday, October 10, 2007

Does the Blakely Five really care about sentencing procedures?

One of many reasons I thought Blakely was so important was because it suggested that five Justices really cared about procedural rights in modern sentencing schemes.  But, as Steve Sady highlights in this recent post, the Supreme Court continues to deny cert on many issues that seek to follow-up on Blakely's promise to champion "adversarial testing" over "judicial inquisition" at sentencing. 

Of course, the Booker remedy seriously undercut efforts to champion "adversarial testing" over "judicial inquisition" at sentencing.  Nevertheless, a range of follow-up Booker issues, ranging from the proper burden of proof at sentencing to acquitted conduct enhancements to judicial fact-finding to revoke supervised release, all present fresh and important opportunities for the Blakely Justices to champion again "longstanding tenets of common-law criminal jurisprudence."  Sadly, though, more than 3 years after Blakely, we are still awaiting the Court to fulfill Blakely's promised commitment to robust procedure justice at sentencing.

October 10, 2007 in Blakely Commentary and News | Permalink | Comments (1) | TrackBack

Sunday, May 20, 2007

Continued pitch for cert on an important Blakely issue

As detailed in this post, I am part of a team seeking cert in Faulks v. US, a case from the Fourth Circuit concerning the procedures for revoking supervised release.  Our initial petition is here, and earlier this month the government filed its brief in opposition (BIO).  A few days ago, we filed our reply to the government's BIO.  These latest filings can be accessed here:

Download faulks_bio_from_government.pdf

Download final_faulks_reply.pdf

Though I am partial, I am genuinely convinced that the issues we have raised in Faulks need the Supreme Court's attention ASAP.  If the Justices in the Blakely five (or the Cunningham six) are genuinely committed to its articulated Sixth Amendment doctrines and principles, the judge-centered procedures employed in federal supervised release revocation proceedings ought to be cause for significant constitutional concern (especially in a case with extreme facts like Faulks). 

As has been well documented in the SCOTUSblog stats, SCOTUS needs to grant cert in a bunch of new cases to fill its fall argument calender.  And the Court has not taken up any new Blakely issues in a while (although, of course, Claiborne and Rita might address Sixth Amendment issues).  I am hopeful we have a real shot with Faulks.

May 20, 2007 in Blakely Commentary and News, Blakely in the Supreme Court, Reentry and community supervision, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, April 18, 2007

When Justice Scalia sounds like Justice Brennan

I have long joked that if you were to read the Blakely majority opinion with your eyes closed ― which is not easy, but worth the effort ― you might think it was authored by the late Justice Brennan and not Justice Scalia.  Though some rhetoric in Blakely is classic Scalia, much of the pro-defendant sentiments are straight from a classic Brennan script.   The trend continued with Justice Scalia's work in Gonzales-Lopez last year (commentary here), where Justice Scalia joined and wrote for the "liberal wing" of the Court to affirm the reversal of a drug dealer's conviction based on a debatable interpretation of the Sixth Amendment.

Now we get Justice Scalia's work in dissent in James (basics here; commentary here), which includes this Brennanesque passage:

Imprecision and indeterminacy are particularly inappropriate in the application of a criminal statute.  Years of prison hinge on the scope of ACCA's residual provision, yet its boundaries are ill defined. If we are not going to deny effect to this statute as being impermissibly vague, see Part III, infra, we have the responsibility to derive from the text rules of application that will provide notice of what is covered and prevent arbitrary or discriminatory sentencing.  See Kolender v. Lawson, 461 U.S. 352, 357 (1983).  Offenders should be on notice that a particular course of conduct will result in a mandatory minimum prison term of 15 years.  The Court prefers to keep them guessing.

Especially because I think Justice Scalia gets the better of the debate in James, it is disappointing and telling that he does not get the votes of either of the new Justices in this case.  Once again it is clear that, at least in the arena of non-capital criminal jurisprudence, President Bush has failed to appoint Justices in the mold of Scalia and Thomas (who dissented on even broader grounds).

Of course, Justice Scalia also sound like himself in his James dissent.  I found especially amusing and telling these closing lines:

Congress has simply abdicated its responsibility when it passes a criminal statute insusceptible of an interpretation that enables principled, predictable application; and this Court has abdicated its responsibility when it allows that.  Today's opinion permits an unintelligible criminal statute to survive uncorrected, unguided, and unexplained.  I respectfully dissent.

April 18, 2007 in Blakely Commentary and News | Permalink | Comments (23) | TrackBack

Monday, April 09, 2007

Another Amendment to obsess over?

I am just back from a terrific faculty workshop in which Prof. Suja Thomas discussed her latest project that builds off her intriguing essay (now in printing in the Virginia Law Review) entitled "Why Summary Judgment is Unconstitutional."  Hearing Suja's presentation and her theory of the Seventh Amendment confirmed my instinct that there are important parallels between the scope and application of the criminal jury trial right safeguarded by the Sixth Amendment and the civil jury trial right safeguarded by Seventh Amendment.

Of course, few should care if I see parallels between between the two jury trial rights that appear in these neighboring provisions of the Bill of Rights.  But, since SCOTUS has cases implicating both Sixth and Seventh Amendment jury trial issues pending this term, I am certainly going to be watching closely to see if some Justices start talking up the parallels.

April 9, 2007 in Blakely Commentary and News | Permalink | Comments (7) | TrackBack

Wednesday, March 14, 2007

A caseload calm before another Sixth Amendment storm?

Thanks to How Appealing here, I see that the Administrative Office of the U.S. Courts has issued this press release, headlined "Fiscal Year 2006 Caseloads Remain At High Levels," which discusses the particulars of 2006 federal court caseloads.  The press release details that, after record high caseload in 2005 due partially to the impact of Blakely and Booker, district and circuit caseloads settled down just a bit (though still remained quite high).

I doubt that the Cunningham ruling in January or pending reasonableness cases of Claiborne and Rita will have nearly the dramatic caseload impact of Blakely and Booker.  Nevertheless, if the Supreme Court ends up scrambling up the modern Sixth Amendment story yet again through its work in Claiborne and Rita, federal courts should gear up for yet another wave of increased litigation.

March 14, 2007 in Blakely Commentary and News | Permalink | Comments (0) | TrackBack

Wednesday, March 07, 2007

It truly is an honor just to be nominated

Green_bag_almanac_cover_2007 Arriving in my mail today was a copy of the latest issue of The Green Bag, and the cover letter informed me that "my recent work was nominated as an example of excellent legal scholarship" and received "an honorable mention" in the Green Bag's second annual Almanac & Reader.  Since I have have a whole lot of recent work (not just on this blog, but also in more traditional scholarly fora), I turned to the "Recommend Reading" section giddy with anticipation about which work of mine had earned me this great honor.

I was pleased to discover that I was one of 17 persons with a "long article" mentioned in the  "Recommend Reading" section of the new Green Bag.  And I was even more pleased that the article selection is a piece that is one of my personal favorites, but among my least cited, explorations of the Blakely and Booker revolution: Beyond Blakely and Booker: Pondering Modern Sentencing Process, 95 Journal of Criminal Law and Criminology 654 (2005).

March 7, 2007 in Blakely Commentary and News | Permalink | Comments (2) | TrackBack

Monday, January 15, 2007

Still more long weekend sentencing reading

If you have somehow made it through the articles noted here and here, then you are ready for a new Blakely piece now available SSRN here.  The piece is by Laura Appleman and entitled "Retributive Justice and Hidden Sentencing After Blakely." Here is the first part of the abstract:

Blakely and its recent progeny have focused attention on a broad swath of fact-finding in sentencing decisions. In doing so, however, they have raised a number of complex questions about how fact-finding operates in the front- and back-ends of sentencing — what I call ancillary, or hidden, sentencing proceedings.  These ancillary sentencing proceedings have been almost entirely neglected in post-Blakely case law and scholarship.

Accordingly, this Article re-evaluates a variety of ancillary sentencing proceedings (including pre-sentence reports, prior offender statutes, probation, parole, post-release supervision and restitution) under Blakely.  As part of this re-evaluation, I also locate a new paradigm of retributive justice underpinning the Court's recent sentencing decisions.  Specifically, I contend that a theory of limited expressive retribution best suits the Court's new sentencing jurisprudence, because it encompasses both the historical antecedents of the 6th Amendment jury right and modern ideals of punishment.

January 15, 2007 in Blakely Commentary and News | Permalink | Comments (1) | TrackBack

Monday, December 04, 2006

An intriguing note on Blakely and "civil" remedies

The latest issue of the Columbia Law Review includes an interesting Note exploring how Blakely might affect orders of restitution and forfeiture.  This Note is entitled "A Civil Jury in Criminal Sentencing: Blakely, Financial Penalties, and the Public Rights Exception to the Seventh Amendment," and is available at this link.  Here is the abstract:

In the 2004 case of Blakely v. Washington, the Supreme Court held that the Sixth Amendment's criminal jury trial right applies not only to the guilt phase of a trial, but also to the sentencing phase.  Since then, criminal defendants have brought Sixth Amendment challenges to judge-imposed restitution and forfeiture, arguing that the facts underlying such financial penalties must be proven to a jury beyond a reasonable doubt.  Many circuits have decided that Blakely does not apply to restitution and forfeiture because they are civil remedies, as opposed to criminal penalties, and thus do not fall within the ambit of the Sixth Amendment.  This Note argues that, even if restitution and forfeiture are civil in nature, the logic of Blakely suggests that the Seventh Amendment's civil jury right nevertheless applies to such penalties.  It then shows how the "public rights" doctrine — a judicial construct in administrative law used to justify exceptions to the Seventh Amendment’s civil jury right — provides constitutional support for exempting certain financial penalties from the reach of Blakely.

December 4, 2006 in Blakely Commentary and News, Criminal Sentences Alternatives | Permalink | Comments (1) | TrackBack

Wednesday, October 04, 2006

Blakely's silver lining (to go with its heart of gold)

Regular readers know I am a fan of the Blakely ruling on its own terms.  But critics of Blakely and Booker will want to be sure to check out Joanna Shepard's arguments, set out in her new paper entitled "Blakely's Silver Lining: Sentencing Guidelines, Judicial Discretion, and Crime," that Blakely could ultimately produce a reduction in crime rates.  Here is the abstract to this intriguing paper:

The Supreme Court's recent striking down of criminal sentencing guidelines in its Booker and Blakely decisions could have a substantial unexpected benefit: the likely expansion in judicial discretion may reduce crime. I show that, contrary to the expectations of many of the original supporters of sentencing guidelines, guidelines are associated with significant increases in crime.  After developing several economic theories of guidelines' impacts, I investigate these impacts empirically using a large state-level data set.  This study is the first to use regression analysis to explore the relationship between sentencing guidelines and crime.  Results show that guidelines are associated with increases in both violent crime and property crime.  If, as is probable, the alternatives to guidelines after Booker and Blakely expand judicial discretion in criminal sentencing, then crime may decrease substantially.

As the abstract reveals, this paper is not really about Blakely and jury trial rights, but rather about the relationship between judicial sentencing discretion and crime rates.  The Justice Department has been saying, since Blakely and before, that rigid mandatory sentencing guidelines have helped produce a reduction in crime.  This paper seems to argue that the opposite is true.  (Personally, I think these complex dynamics cannot be subject to any simple cause-effect relationship.)

UPDATE:  Michael Connelly here at Corrections Sentencing has a strong review of this article.  He notes some methological concerns and then shares there concluding sentiments:

It's useful for the points it manages to make and for the hole it puts in the conventional wisdom.  We need this kind of shakeup of our suppositions.  What the article needed was peer review by trained criminologists and political scientists, not folks trained in the narrow cognitive world of law and econ.  The author would have had to have made a much better argument, but the one made is one that must be considered by all of us, nevertheless.

October 4, 2006 in Blakely Commentary and News | Permalink | Comments (0) | TrackBack

Tuesday, July 04, 2006

A holiday retrospective on Blakely fireworks

On the last two Independence Days, I have had Blakely on my blog brain.  So, to keep up tradition, today I will just link back to these prior July 4th Blakely discussions:

July 4, 2006 in Blakely Commentary and News | Permalink | Comments (0) | TrackBack

Thursday, June 29, 2006

A Blakely perspective on Clark

The Supreme Court's discussion of due process, insanity and mens rea today in Clark is another example of the challenging intersection of criminal law and psychology.  The majority opinion, which rejects various due process claims, is narrowly written so Clark will likely not be a due process watershed ruling.  Indeed, what I find most interesting about Clark is how the votes and opinions shake out as compared to cases in the Apprendi-Blakely line.

Intriguingly, Justice Souter authored Clark and he brought along Justices Scalia and Thomas from the Blakely five (as well the newbie Justices) in an opinion that is functional, relatively narrow, and emphasizes the importance of the "State chosen standard[s]."   Meanwhile, Justice Kennedy authors a strong dissent, joined by Justices Stevens and Ginsburg, which accuses the majority of "fail[ing] to appreciate the implications for Winship."  Winship, of course, is the key due process ruling clarifying the import and reach of the requirement that prosecutors prove elements of an offense beyond a reasonable doubt.

I am not sure what all this might means for the big Blakely cases on the horizon (perhaps nothing), but it confirms my view that, outside the death penalty context, the traditional liberal/conservative labels and expectations are hard to square with the actual outcomes in a range of large and small criminal justice cases the Court decides.

June 29, 2006 in Blakely Commentary and News | Permalink | Comments (3) | TrackBack

Saturday, June 24, 2006

Blakely turns two ... let's forum!

Two years ago today, the Supreme Court handed down its decision in Blakely v. Washington.  In my first post after the decision, I commented that "the ramifications of this decision for modern sentencing reforms cannot be overstated," and that there will "be lots and lots more litigation (some of which will surely make its way again to the Supreme Court) about what [Blakely] now means for the operation of structured sentencing systems."  As we await a decision from SCOTUS in Recuenco on the nature of Blakely error, and also look forward to two major Blakely cases on the docket next Term (Cunningham and Burton), the accuracy of these predictions are pretty clear.

So, on its birthday, what do you get for Blakely, the sentencing case that has everything?   My idea is to honor the day by starting to post any commentary sent my way in response to the "Blakely at two" blog forum I proposed in this post

June 24, 2006 in Blakely Commentary and News | Permalink | Comments (1) | TrackBack

Tuesday, June 06, 2006

Any interest in a "Blakely at two" blog forum?

In light of the cert grant in Burton to address Blakely retroactivity, I am thinking it might be fun to convene a blog forum later this month on Blakely two years later. 

By the time of Blakely's two-year anniversary (which is June 24, 2006), we ought to have a decision in Recuenco discussing whether Blakely errors can be subject to harmless-error analysis or instead are structural errors.  In addition, this summer will be filled with briefing on both the Burton retroactivity issue and Blakely's fate for California in the Cunningham case.  With all this on-going Blakely activity, I wold be especially interested to hear various opinions from various folks about the the state and fate of Blakely two years later.

If readers like this idea, let me know in the comments or via e-mail.  And send me an e-mail if you would be interested in participating in such a "Blakely at two" blog forum.  Thanks.

June 6, 2006 in Blakely Commentary and News | Permalink | Comments (1) | TrackBack

Wednesday, May 24, 2006

Another measure of the impact of Apprendi, Blakely and Booker

TaxProf Blog and the ELS Blog are both talking about the most heavily cited court cases inspired by this recent work by Adam Steinman, which concludes with two fascinating charts in an appendix (at pages 143-45) with the 15 most-cited cases by federal courts and tribunals and the 30 most-cited cases by federal and state courts and tribunals.  These charts tell lots of interesting tales, but of course I am zeroed in on the sentencing stories.

Not surprisingly, nearly every case in both of the most-cited charts are at least 20 years old and many cases on the top 30 list of combined federal-state cites are criminal procedure classics like Miranda and Terry and Brady.  But, tellingly, there is one more recent case cracking the top 30 list of combined federal-state case cites, Apprendi v. New Jersey, even though that decision was a mere five years old when Steinman ran these numbers in June 2005. 

In addition, with the help of a few quick Westlaw searches, I think an updated chart of these cite counts might already have both Blakely and Booker cracking the top 30 list of combined federal-state case cites.  By these measures, there is now some support for my (over-heated?) claim in this seemingly long-ago Slate piece that Blakely might be "the biggest criminal justice decision not just of this past term, not just of this decade, not just of the Rehnquist Court, but perhaps in the history of the Supreme Court."

May 24, 2006 in Blakely Commentary and News | Permalink | Comments (0) | TrackBack

Monday, March 20, 2006

Eighth Circuit affirms another lengthy sentence for an uncharged murder

In his opinion for the Court in Blakely, Justice Scalia assails the notion that the Sixth Amendment could mean that a "jury need only find whatever facts legislature chooses to label elements of the crime, and that those it labels sentencing factors — no matter how much they may increase the punishment — may be found by the judge."  The problem, explains Justice Scalia, is that this "would mean, for example, that a judge could sentence a man for committing murder even if the jury convicted him only of illegally possessing the firearm used to commit it...." 

If this possibility truly concerns Justice Scalia and other members of the Blakely majority, the Supreme Court ought to be interested in a cert. petition coming from today's unpublished decision by the Eighth Circuit in US v. Rashaw, No. 05-1839 (8th Cir. Mar. 20, 2006) (available here).  As detailed in the first paragraph, the Rashaw case fits Justice Scalia's description:

A jury convicted Geoffrey L. Rashaw on two counts of being a felon in possession of a firearm and one count of possessing an unregistered firearm.  At Rashaw's post-Booker sentencing, the government presented evidence that Rashaw possessed firearms in connection with a double homicide.  Based on the evidence, the district court set Rashaw's base offense level at 43 ... [which under the] sentencing guidelines set the sentence at life imprisonment.  Because statutory provisions limited the sentence on each count to ten years, however, the court sentenced Rashaw to three consecutive 120-month terms of imprisonment under U.S.S.G. § 5G1.2(d).

As the Eighth Circuit explains, "Rashaw appeals arguing the 360-month sentence is unreasonable because the district court expressly based the sentence on a finding that he had committed an unrelated, uncharged double murder."  In addition, Rashaw "argues that under United States v. Booker, 543 U.S. 220 (2005), the double murder had to be found by a jury beyond a reasonable doubt, rather than by a judge on a preponderance of the evidence."  The Eighth Circuit is unconvinced:

Because the district court applied the guidelines in an advisory manner, the court could find sentence-enhancing facts by a preponderance of the evidence....  The double murder was relevant conduct that was properly considered in deciding Rashaw's guidelines range and the factors in 18 U.S.C. § 3553(a).

So, as Justice Scalia feared, Rashaw is convicted at trial of illegal possession of firearms, and gets 30 years for uncharged murders.  But this case does not exactly fit Justice Scalia's description: the Eighth Circuit notes that "Rashaw points out the guns he possessed with respect to his sentence were not involved in the double homicide."  No problem, says the Eighth Circuit: "The § 2K2.1 enhancement for using a firearm in another felony need not be the same firearm involved in the offense of conviction."  Wow!

If Blakely's procedural rights are ever going to have any bite in an "advisory" federal sentencing system, this Rashaw case would seem to be a good vehicle for testing the courage of the Blakely five's convictions.  And I continue to wonder what Justice Alito and Chief Justice Roberts, if they share aspects of Justice Scalia's judicial philosophy, might think about cases of this sort.

Related posts on uncharged murder sentencing:

March 20, 2006 in Blakely Commentary and News, Booker and Fanfan Commentary, Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (8) | TrackBack

Wednesday, March 15, 2006

The federal litigation shock of Blakely and Booker

With thanks to How Appealing, I see that the Administrative Office of the U.S. Courts has issued this news release which documents some of the impact of Blakely and Booker on the workload of the federal courts.  Here are some criminal law filing details from the release:

Criminal appeals jumped 28 percent in FY 2005 to 16,060, with growth in cases related to nearly all types of crimes.  The most significant increases were in appeals related to drug offenses (up 31 percent to 6,099); immigration (up 55 percent to 2,896); firearms and explosives (up 23 percent to 2,505); and property (up 15 percent to 1,967)....

Original proceedings [in circuit courts] climbed 23 percent to 5,017 as state and federal prisoners filed 3,617 second or successive motions for permission to file habeas corpus petitions (up 42 percent) following the Supreme Court's decisions in Blakely v. Washington and U.S. v. Booker....

The new release also has some interesting data in changes in the case mix of criminal filings in the federal district courts:

Nationwide, criminal filings in the U.S. district courts fell 2 percent to 69,575 in FY 2005, and the number of defendants in these cases dropped 1 percent to 92,226.  Despite the overall decline, increases occurred in cases involving drugs other than marijuana, sex offenses, and immigration offenses.

March 15, 2006 in Blakely Commentary and News, Booker and Fanfan Commentary, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Wednesday, March 08, 2006

Ohio defenders seek reconsideration of Foster's retroactive application

Today brings an interesting development in the saga of Blakely's application to Ohio's sentencing law.  Recall that last week, the Ohio Supreme Court in Foster found Blakely applicable to Ohio's structured sentencing system and adopted a Booker-type remedy (basics here, commentary here and here and here).  Now, the Foster defendants and a supporting amicus have filed for reconsideration in the Ohio Supreme Court claiming that the "retroactive application of this case's remedy to persons who committed their criminal offenses prior to the release of the Opinion, violates clearly established United States Supreme Court precedent regarding ex post facto and due process."

I have provided links to two briefs filed in support of this motion for reconsideration.  Here is a portion of the argument summary from Amicus Curiae Cuyahoga County Public Defender:

Your amicus' argument against retroactive application to persons who committed their offenses prior to 9:00 a.m. on February 27, 2006, can be summarized as follows. At the time of the offense conduct, the criminal defendant enjoyed, as a standard range of punishment, a presumptive sentence of minimum and concurrent terms of imprisonment; a trial judge could only overcome that presumption by making statutorily prescribed findings. This Court correctly held that, because the trial judge and not a jury was entrusted with making these findings, the statutory scheme violated the Sixth Amendment right to trial by jury as interpreted by Blakely. In its opinion in the instant case at “Part V. Remedy,” ¶¶ 84-102, this Court has eliminated the presumptive sentence, thus relieving the trial judge of having to make any findings whatsoever before imposing a sentence at any point in the statutory range and before ordering terms of imprisonment to be served consecutively to one another.

Applied prospectively, this Court's employment of severance to save the statutory scheme from an unconstitutional interpretation, as a general matter, does not violate ex post facto and the due process considerations attendant thereto.  However, when applied to those persons whose crimes were already committed, this Court's remedy unconstitutionally changes the rules to the defendant's detriment by stripping defendants of the protections of the presumptions discussed above.  Just as the General Assembly could not amend the statutory scheme in this manner and legislate that the new scheme apply to those whose crimes have already been committed, this Court is precluded from doing the same.

Download FosterReconsiderationMotion.pdf

Download FosterAmicusReconsiderationMemo.pdf

UPDATE: The ACLU of Ohio has also filed a brief seeking reconsideration of the Foster remedy.  The ACLU brief, which can be downloaded below, stresses separation of powers concerns.  Here is a snippet:

The ACLU files this supporting brief as amicus to address [its] concern that ... Foster violates the separation of powers by usurping the legislative function specifically and exclusively allocated to the General Assembly.

Download aclu_foster_blakelybooker_recon_amicus.pdf

March 8, 2006 in Blakely Commentary and News, Blakely in the States, Blakely in the Supreme Court, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, February 23, 2006

The latest must-read on Blakely/Booker

Professor Ron Wright, throughout his copious work on federal and state sentencing systems, always adds an insightful and distinctive perspective to our understanding of sentencing reform.  (Bias acknowledgment: Ron is a co-author on my casebook, Sentencing Law and Policy: Cases, Statutes and Guidelines.)  Ron's latest paper (available here), entitled "The Power of Bureaucracy in the Response to Blakely and Booker," is no exception.  Here is part of the abstract:

How will different jurisdictions respond to the recent Supreme Court decisions in Blakely v. Washington and United States v. Booker, which require jury fact-finding to support certain types of sentences?  The best clues in predicting the answer to this question come from the people who know this world best, the sentencing bureaucracy.  Sentencing commissions, mostly for benign reasons, hope to preserve their own place in the sentencing structure, or to expand their role if possible.  The particulars shift from place to place, but this powerful tendency of bureaucracies for self-preservation offers a reliable way to predict the reactions of sentencing systems to the upset from Blakely and Booker.

February 23, 2006 in Blakely Commentary and News, Blakely in the States, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack