Monday, November 02, 2009
A potent pitch for potent jury power after ApprendiThis 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.
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:
- Might the Harris limit on Apprendi be at risk with O'Brien cert grant?
- Might Apprendi be at risk with O'Brien cert grant?
- Should the ALI and other academics actively urge SCOTUS to reverse Harris in O'Brien?
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.
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.
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.
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."
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.
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:
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.
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.
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.
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.
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.
Wednesday, March 07, 2007
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).
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.
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.
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.
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:
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.
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.
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.
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."