Sentencing Law and Policy

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."

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.

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.

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.

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.

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.

It truly is an honor just to be nominated

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).

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.

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.

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.

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, 2005: Celebrating liberty, Blakely-style
• July 4, 2004: Cass, have you read Blakely?

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.

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. 

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.

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."

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:

• Sentenced for an uncharged murder
• Sentenced for three uncharged murders
• Seventh Circuit upholds upward departure based on uncharged (and unproven?) crimes
• Eleventh Circuit approves sentences based on hearsay evidence of uncharged murders

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.

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

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.

Blakely and Booker action at the Ninth Circuit's judicial conference

With thanks to Howard for the link, I see from this news release that the theme of the Ninth Circuit's judicial conference this summer is "Seismic Shifts in the Law and in Our Lives."  That document explains that "general sessions will focus on sentencing, juries, natural disasters, court security and disaster planning, and judicial wellness."  By my lights, all of these topics could be viewed as various aspects of Blakely and Booker, save perhaps court security.

A Valentine week sentencing wish list

For a long-married fellow like me, Valentine's Day feels like being an Olympian heavily favored to win a gold: if I perform well, I will only meet expectations; if I perform poorly, many are disappointed and my reputation can be tarnished.  Nevertheless, I am looking forward to this Valentine week with hope that some sentencing-related wishes might be fulfilled by others:

US Supreme Court: I would love a cert grant in the major state Blakely cases that are scheduled to be conferenced this Friday (background here and here and here), in part because I am so curious to find out what Justice Alito and Chief Justice Roberts think about Blakely (background here and here). 

State Supreme Courts:  I would love decisions in major Blakely cases that the Ohio Supreme Court has been considering for nearly seven months (background here) and that the Michigan Supreme Court has been considering for over three months (background here).

US Sentencing Commission:  I would love new data about the post-Booker world, especially since it's been more than five weeks since the USSC's last data report (background here).  I would also love some official news about when we might expect the USSC's comprehensive Booker report.  Post-Booker patience may be a virtue, but mine is short.

US Department of Justice:  I would love a thoughtful and public DOJ report on the pros and cons of the post-Booker world from the perspective of federal prosecutors.  We've seen such a report from federal defenders in a (long and powerful) letter to the USSC.  I'd now like to hear the other side, perhaps through a similar letter to the Commission.

Circuit and District Courts: I would love a lot more decisions, like those recently from the Sixth Circuit and Judge Adelman and Judge Bataillon, which take both parts of the Booker ruling seriously and give focused attention to the plain text of 3553(a).

The possible impact of a Sca-Roberts on sentencing jurisprudence

From a quick review, the Supreme Court's 6-3 ruling today in the assisted suicide case, Gonzales v. Oregon, seems rich with meaning and ironies.  Of course, I am always seeing sentencing angles (even when they are not there), and today that angle comes from the fact that Chief Justice Roberts joined Justice Scalia's dissenting opinion in Gonzales v. Oregon.  When considered together with CJ Roberts' vote and opinion assignment to Justice Scalia in the 5-4 capital case decided last week (details here), I cannot help but observe that the new Chief seems so far to be quite in tune with Justice Scalia's view of the jurisprudential world.

Of course, though some may bemoan this (admittedly limited) evidence of a "Sca-Roberts," criminal defendants (at least those not on death row) should be pleased my over-reading of these early tea leaves.  As I explained in this post following the Alito nomination, from the perspective of a criminal defendant, a Supreme Court filled with justices like Antonin Scalia would not always be so bad because Justice Scalia's constitutional vision sometimes leads him to liberal results: consider Justice Scalia's work in Blakely, where he boldly asserts that "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment," and Justice Scalia's work in Sullivan, where he argues that judges in some cases should not be permitted to affirm convictions by declaring certain constitutional violations harmless.

Recalling the current SCOTUS sentencing head-count on Apprendi-Blakely-Booker issues, it is remarkable to think about what might happen if Justices Roberts (and Justice Alito as well) were to embrace Justice Scalia's perspectives on jury trial rights.  Blakely's reach and impact might ultimately be even broader than anyone has predicted.

Why Kaua may be the circuit decision of the month (so far)

January is living up to my prediction as an amazing sentencing month, although I did not predict that we would get so many important and consequential circuit rulings to kick off the new year.  Indeed, the 1st Circuit's decision in Pho, the 4th Circuit's decision in Clark, the 8th Circuit's decision in Mickelson, and the 11th Circuit's decision in Williams are arguably among the most important circuit decisions concerning Booker that we've seen in many months.

But there is one recent circuit decision that should not be overlooked in all the Booker action: the Ninth Circuit's habeas decision in Kaua (discussed here), which ruled (despite a contrary opinion from the Hawaii Supreme Court) that an aspect of Hawaii's sentencing system violates the Apprendi-Blakely rule. Here are just a few reasons why Kaua strikes me as especially important:

• The decision rejects an effort to expand the ambit of the "prior conviction" exception to the Apprendi-Blakely rule, and thus reinforces the Ninth Circuit's view that Blakely announced a bright line. 

• The decision disagrees with the Second Circuit's ruling in Brown v. Greiner (basics here, commentary here) addressing a similar issue in New York sentencing law.

• Because the state lost, and because Kaua rejects a considered view of Hawaii's Supreme Court, the posture of this case suggests cert. might be sought (and might be granted?) to explore the status and scope of the "prior conviction" exception.

• The Ninth Circuit's willingness to enforce its bright line view of Apprendi and Blakely in a habeas setting strongly suggests that the Circuit will not look kindly upon the state of California's efforts to preserve its sentencing system in the wake of Blakely.  Though I suspect the Supreme Court will be examining California's Blakely dodge before California habeas cases make their way to the Ninth Circuit, Kaua will loom especially large if the Supreme Court decides not to take a California Blakely case soon.

Judge Gertner applies Sixth Amendment to restitution

Hall of Famer Massachusetts US District Judge Nancy Gertner issued another major ruling on Booker issues earlier this week with another decision in US v. Mueffelman, No. 01-CR-10387-NG (D. Mass. Nov. 14, 2005) (available here).  In this iteration of Mueffelman, Judge Gertner breaks new ground with respect to the application of Blakely and Booker to orders of restitution:

[T]his case raised an issue of first impression in this Circuit -- whether victims who were not specifically named in the indictment could receive restitution under the MVRA. That issue requires resolution of at least two others -- whether restitution under the MVRA is compensatory (to the victims) or punitive (to the defendant) or both, and if punitive to any degree, whether the order is subject to the protections of the Sixth Amendment. I have concluded that restitution is punitive, and subject to the Sixth Amendment's protections. Nevertheless, in applying that analysis to the case at bar, I have ordered restitution to victims who, while not named in the indictment, fit within the "scheme" that was alleged and proved.

I believe this Meuffleman ruling is the first to find Blakely and Booker applicable to orders of restitution under the MVRA; a number of circuits have expressly rejected such a claim, though the Third Circuit is considering the issue en banc.  Given that Judge Gertner in her first ruling in this case right after Blakely last July essentially predicted the outcome in Booker, I would not quickly presume that her views on these restitution issues won't prevail.

Blakely/Booker cases on-line about to top 10,000!

Today, which happens to be exactly 16 months since the Blakely decision was handed down, a search on Westlaw in the allcases file in the form of "da(aft 6/24/2004) & (blakely booker) & sentenc!" produced 9946 case hits.  (Interestingly, 3603 of these hits are in the allstates database, while 6343 come from the allfeds database.)  A similar search in Lexis, for either the last year or the last six months, gets interrupted "because it will return more than 3000 results."   

Notably, it was just over four months ago, as detailed in this post, that the total number of on-line case hits for this search topped 5000; it appears we are now getting more than 1000 Blakely or Booker decisions coming on-line each month.  Especially given that these numbers do not reflect the tens of thousands of sentencings that Blakely or Booker have impacted which do not result in an on-line opinion, I view this data as providing further support for my (hyperbolic?) claim in this Slate piece last year that "Blakely is the biggest criminal justice decision not just of [the 2003 SCOTUS] term, not just of this decade, not just of the Rehnquist Court, but perhaps in the history of the Supreme Court."

Third Circuit to examine en banc Blakely's impact on restitution

The folks over at Appellate Law & Practice have a lot of strong recent posts, including this item which helpfully pointed me to this extended post from the Third Circuit Blog detailing that the Third Circuit "has sua sponte voted to rehear en banc three appeals previously argued before two different panels in which the issue is whether the rule of Blakely and Booker applies to orders of restitution and forfeiture."  By my lights, this is an quite interesting and important development.

As detailed in this post on an Eighth Circuit decision last month, the consensus view in the federal circuits is that neither Apprendi nor Blakely prohibit judicial fact finding for restitution orders.  But, as I have said before, that consensus view seems somewhat suspect in light of Justice Scalia's forceful and broad assertion for the Court in Blakely that "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment."

David McColgin's post at the Third Circuit Blog provides a useful primer on why the Third Circuit will have a lot to consider in these en banc cases, and this prior posts details that at least one academic commentator thinks that the Third Circuit ought to follow a different path than the other circuits on these important issues.

Is SCOTUS interested in the consecutive sentencing Blakely issue?

Lower courts have all been in agreement that Blakely does not formally apply to a judicial decisions to impose consecutive sentences, even though a functional understanding of Blakely suggests its applicability when a sentencing scheme requires the finding of a predicate fact before a consecutive sentence can replace a presumptive concurrent sentence.  Interestingly, thanks to the reemergence over at INCourts of Michael Ausbrook (whose coverage of state Blakely issues has been missed), I see that the Supreme Court might be interested in the consecutive sentencing Blakely issue.

As Michael explains in this post, after Indiana defendant Smylie filed a cert. petition on the question of Blakely's applicability to consecutive sentences, the Supreme Court ordered Indiana to file a response even though the state has waived its right to respond.  Though I think other Blakely issues are more pressing and one should not read too much into a briefing request, I think Michael is right to comment that "somebody in Washington seems interested in Smylie, Blakely, and consecutive sentencing."

Pondering the next SCOTUS Blakely/Booker case

The recent cert petitions in Blakely cases coming from California and from Tennessee have me thinking hard about exactly which case and exactly what issue will provide the setting for Supreme Court's next foray into the Blakely and Booker thickets.  Notably, my outline in this post of key post-Blakely and post-Booker questions that merit the Supreme Court's attention did not focus on various issues that many state systems are struggling through.  It is fun (but probably foolish) to speculate that the Supreme Court decided to pass on the issue of Booker plain error (basics here, commentary here and here) in order to save its time and energies for cleaning up some of the state Blakely mess it has made.

My SCOTUS pondering has both a descriptive and a normative component: I am wondering which Blakely/Booker case and issue the Supreme Court likely will take up next and also considering which Blakely/Booker case and issue the Supreme Court should take up next.  Ultimately, I still think the validity and scope of the "prior conviction" exception, which the Shepard decision further confused, is the most pressing and important issue needing to be resolved, but lately I am thinking that the High Court may find its way to taking up some other Blakely/Booker issues first.

Perhaps readers might use the comments, which have been fairly quite of late, either to make predictions about the next Blakely/Booker case and issue likely to come before the Supreme Court or to advocate a position concerning which Blakely/Booker case and issue the Supreme Court should take up next.

SCOTUS is out of touch

So says Stuart Taylor, Jr. in this interesting piece from The Atlantic Monthly (hat tip Howard).  The main theme of Taylor's piece is captured by its subtitle: "The Supreme Court's greatest failing is not ideological bias — it's the justices' increasingly tenuous grasp of how the real world works."  The piece's opening paragraph spotlights that the current members of the Supreme Court lack experience in many legal and political arenas, and Taylor rights notes, as I have in prior posts, the limited trial court experience and criminal law experience among the current Justices.  Also, Taylor's essay includes this effective paragraph summarizing the mess that SCOTUS has made through its Apprendi-Blakely-Booker sentencing jurisprudence:

In a string of decisions since 2000 the Court has thrown the criminal-justice system into utter confusion by repeatedly changing the rules on the roles of judges and juries in sentencing, while providing minimal guidance on how the new rules should be implemented. In response to the rulings, thousands of current inmates have requested re-sentencing, to the consternation of federal trial and appellate judges, who are all over the lot on how to handle these requests. (The judges also have major differences of opinion on how much weight they should now give sentencing guidelines in new cases.) We'll be hearing more about this confusion — it's a clear recipe for an onslaught of additional appeals down the road, which will further tax our already overburdened criminal-justice system.

UPDATE: A helpful reader pointed me to this interesting column picking up the same themes about the Supreme Court being too cloistered.  The author suggests that Justices be brought "home to the towns where they grew up or worked or raised their families. Let's keep them in our midst so they can live the lives of average Americans and stay close to our hopes and fears and daily struggles."

Points for creativity?

If ever in these crazy modern times you find yourself nostalgic for ancient common law writs, I have a sentencing case for you.  Today in US v. Holt, No. 04-15848 (11th Cir. July 19, 2005) (available here), the 11th Circuit faced a Blakely claim raised in a writ of audita querela: "Holt argues that a federal court may vacate a criminal conviction or sentence, pursuant to a writ of audita querela, if there is a legal objection that did not exist at the time the judgment was entered."  As the 11th Circuit explains:

Audita querela, Latin for "the complaint having been heard," was an ancient writ used to attack the enforcement of a judgment after it was rendered.  Black's Law Dictionary 126 (7th ed. 1999).  The common law writ was typically employed a judgment debtor in a civil case against the execution of a judgment because of some defense or discharge arising subsequent to the rendition of the judgment or the issue of the execution. The writ of audita querela was abolished, however, in the civil context by the Federal Rules of Civil Procedure.  We have not addressed the writ's continued applicability in the criminal context.

Awarding no points for the defendant's creativity in the invocation of common law writs, the 11th Circuit rejects the defendant's efforts: "We hold that a writ of audita querela may not be granted when relief is cognizable under 28 U.S.C. § 2255, as it is here.  Moreover, construing Holt's motion or writ as one made pursuant to § 2255 we find that he has failed to obtain an order from our court authorizing the district court to entertain Holt's second and successive motion for such relief."

More great sentencing reading, especially for SCOTUS watchers

I am, slowly but surely, working through all the amazing sentencing article in this great Columbia Law Review issue.  But, especially with a Supreme Court vacancy garnering everyone's attention, I want to spotlight another interesting sentencing piece that is on my night-table. 

Professor Richard Myers, in a piece entitled Restoring the Peers in the "Bulwark": Blakely V. Washington and the Court's Jury Project, 83 North Carolina Law Review 1383 (June 2005), explores the reasons why a seemingly unusual coalition of Justices came together to champion jury trial rights in Apprendi and Blakely and Booker.  Here is a snippet from the introduction:

The opinions in these cases reveal that the so-called "centrist" Justices on the current Court have difficulty identifying the right to jury trial — at least as defined by the Blakely majority — as a mainstream value. The unconventional lineup in the Blakely/Booker line of cases confounds the conventional wisdom, as well as the social scientists' models.... These cases, which together have fundamentally altered state and federal structured sentencing guidelines systems, suggest that for some reason, the "centre cannot hold."

The Court's holding in Blakely extends a line of recent cases exploring the meaning of the right to a jury trial and establishes a readily understood principle for deciding what the right means and when it is being eroded. The Blakely line of cases shows that the jury stands at a constitutional crossroads where substantive and structural issues overlap.  The jury right implicates substantive concerns critical to the left, such as innocence, appropriate levels of punishment, and proportionality, as well as structural concerns critical to judicial conservatives, such as separation of powers and democratic theory principles.  This position ensures that the right to a jury trial will endure as a core constitutional value.

The insights developed by Professor Myers reinforce some points I have made here and here and here that a new Justice replacing the "centrist" Justice O'Connor could have an interesting and perhaps unexpected impact on the Supreme Court's still developing sentencing jurisprudence.

In the interest of full disclosure (and also self-promotion), I should note that another passage in Professor Myers' article also garnered my attention.  In the course of noting the academic contributions to the on-going