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.
Thursday, March 28, 2013
Sixth Circuit panel grants habeas relief to Tennessee defendant sentenced in violation of BlakelySadly, I no longer get ample opportunities to blog about Blakely Sixth Amendment sentencing issue these days -- though I suppose this could change if (and when?) the Supreme Court give these issues a new boost via a big ruling in Alleyne in the near future. Joyfully, this morning brings a little Blakely-era nostalgia via the Sixth Circuit's habeas grant in Lovins v. Parker, No. 11-5545 (6th Cir. Mar. 28, 2013) (available here). This extended decision gets started this way:
After a Tennessee state court jury convicted petitioner Derry Lovins of second-degree murder, the state trial court judge made additional factual findings and enhanced Lovins’s sentence from twenty to twenty-three years based on those findings. In this petition for a writ of habeas corpus under 28 U.S.C. § 2254, Lovins raises various claims of trial error and argues that the threeyear sentence enhancement was unconstitutional under the rule of Blakely v. Washington, 542 U.S. 296 (2004), because the sentence was enhanced based on facts that were not found by a jury. The history of Lovins’s requests for relief in state court is byzantine, but the legal principles are not. Lovins’s direct appeal was not final until almost three years after the Blakely decision, and therefore Blakely applies to his case under the clearly-established retroactivity rules of Griffith v. Kentucky, 479 U.S. 314 (1987), and Teague v. Lane, 489 U.S. 288 (1989). For this reason, and because the procedural default doctrine does not bar our review of the merits of Lovins’s Blakely claim, we REVERSE the district court’s denial of relief, and we conditionally GRANT a writ of habeas corpus on the Blakely sentencing claim only. We AFFIRM the district court’s denial of relief on all of Lovins’s other claims.
March 28, 2013 in Blakely in Appellate Courts, Blakely in the States, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack
Friday, December 23, 2011
Sixth Circuit finds no constitutional problems with Ohio's judicial Blakely fix
A helpful reader alterted me to a new Sixth Circuit ruling today in Ruhlman v. Brunsman, 09-4528 (6th Cir. Dec. 23, 2011) (available here), which sorts through a habeas challenge to how Ohio courts dealt with its Blakely issues. Though these two paragraphs from the opinion may only make sense to hard-core Blakely fans, they capture the essence of the ruling:
We disagree and conclude that Ruhlman’s due-process rights were not violated. Foster did not alter the applicable sentencing range for attempted rape, which has consistently been two to eight years. See O.R.C. §§ 2923.02, 2907.02, 2929.14(A)(2). Nor did it alter the elements of the substantive offense of attempted rape. Further, when Ruhlman committed the offense, he was subject to a sentence in excess of two years by virtue of the fact that he had served a prior prison term. See id. § 2929.14(B)(1). In addition, at the time he committed the offense, Ruhlman was on notice that he was subject to a longer sentence contingent upon a trial-court finding that a minimum sentence would demean the seriousness of his conduct or would not adequately protect the public from future crimes, O.R.C. § 2929.14(B)(2), and a maximum eight-year sentence if the sentencing court found him to be a sexual predator who posed the greatest likelihood of recidivism. See id. § 2929.14(C). Therefore, pre-Foster, Ruhlman was on notice that he could receive an eight-year sentence for his actions if the court were to make certain findings. The court made these findings at Ruhlman’s first sentencing and imposed the maximum sentence. The fact that the court imposed that very sentence post-Foster was neither “unexpected [nor] indefensible by reference to the law” that applied when Ruhlman committed his offense. Bouie, 378 U.S. at 354 (citation omitted).
The Ohio Supreme Court’s determination that the relevant portions of Ohio’s statutory sentencing scheme violated Blakely and its decision to sever those portions does not in and of itself implicate ex-post-facto-type due-process rights. The court simply acknowledged that if a fact is necessary to support a particular sentence, that fact must be found by the jury, rather than a judge. The court remedied the problem by following Booker and severing and striking the provisions, with the result that any sentence within the range specified by statute for the offense could be imposed by the court if consistent with the remaining sentencing criteria. Defendants committing crimes before Foster cannot claim that they have an ex-post-facto-type due-process right to have sentencing elements found by a jury, because the unconstitutionality of the sentencing scheme does not negate its existence.
Wednesday, August 31, 2011
"Is California’s Cunningham fix finally going to see the sun set?"
Lawyer and sentencing guru Mark Allenbaugh (firm website here) alerted me to an important developing issue in the revision and reform of California's sentencing law. At my request, Mark kindly wrote this post's title and this terrific guest-post on the topic:
In 2007, the U.S. Supreme Court in Cunningham v. California ruled that California’s three-tiered determinate sentencing scheme (known as the Determinate Sentencing Law or DSL) was unconstitutional per Apprendi v. New Jersey and Blakely v. Washington, ostensibly ending its 30-year reign. Like its far more robust federal counterpart, DSL has been met with constant criticism.
Under California’s DSL, the presumptive sentence was the so-called mid-term sentence. For example, if the three terms available were 16, 24 and 36 months (and this is generally how the terms are spread, i.e., over a definite period of years), the sentencing judge would have to sentence the offender to 24 months (which really means a prison term of 12 months, since California is a half-time state, i.e., one can get up to 50% good time credit unlike the pithy 15% at the federal level) unless the judge found certain factors in mitigation, which would allow for a sentence at the low term (16 months in this case) or factors in aggravation, which would allow a sentence at the high term — 36 months. Of course, this latter example was exactly the problem with California’s DSL, or so thought the U.S. Supreme Court — the presumptive mid-term sentence of 24 months really was the statutory maximum, which, since it could be raised to 36 months by judicial fact-finding, violated Apprendi.
Shortly after Cunningham the California legislature passed S.B. 40, which supposedly would provide a “Cunningham fix” by eliminating the mid-term presumption. The legislation simply provided that a judge had discretion to sentence to any of the three terms, thereby ostensibly making the high-term the statutory maximum term. Wisely, the legislature put a sunset provision into the 2007 law, which is now set to expire on January 1, 2012.
In light of the current financial crises effecting so many government institutions in the state (it was not that long ago when the “Governator” had to pay state employees with IOUs), coupled with the recent U.S. Supreme Court decision in Brown v. Plata upholding a federal three-judge panel’s order that California must significantly reduce its prison population, it is surprising that a new piece of legislation — S.B. 576 — that will, if passed, extend the Cunningham fix’s sunset provision to 2014, hasn’t received more attention. Just last week, on August 25, the bill was unanimously voted out of committee and may soon be on Governor Brown’s desk. Sources indicate that the bill could be on the Governor’s desk as early as the end of this week!
An easy way, it would seem, to begin addressing California’s prison over-crowding crisis would be to let the Cunningham fix die a dignified death. Making aggravating facts that must be proved to a jury to get the high-term obviously will make it more difficult to sentence offenders to the high-term, but will also ensure the due process rights that concerned the Supreme Court in Cunningham are met. What California needs is not clever sentencing legislation to do an end-run around due process, but, as even President Obama has championed through the Fair Sentencing Act, smarter sentencing schemes that do not result in over-crowded prisons, which breed a culture of recidivism.
Ironically, it was Governor Brown (aka “Governor Moonbeam” for the disco generation) who signed California’s DSL into law in 1977. He too has been a vocal critic of the DSL even while serving as the State’s Attorney General. Now once again in the Governor’s seat, if presented with the bill to sign into law by the legislature, and in consideration of the fiscal, legal and humanitarian realities facing California’s prison system, Governor Brown would be wise to heed the words of his former girlfriend Linda Ronstadt and say to the bill “You’re no good! You’re no good! You’re no good! Baby, you’re no good!”
Saturday, June 04, 2011
Montana murder defendant raising Ring challenge to state's death penalty
As detailed in this local article, which is headlined "Tyler Miller murder case: Attorneys challenge death penalty," the lawyers "for accused double murderer Tyler Michael Miller are asking a Flathead District judge to rule that Montana’s death penalty statutes are unconstitutional." Here is more:
Miller, 34, has been charged with two counts of deliberate homicide for the Christmas Day shooting deaths of his ex-girlfriend Jaimi Hurlbert and her 15-year-old daughter Alyssa Burkett. The Flathead County Attorney’s Office filed amended charges March 9 indicating it would seek the death penalty for Miller.
Miller’s attorneys Ed Sheehy and Noel Larrivee submitted a motion Wednesday stating that Montana’s death penalty statutes are unconstitutional because sentencing powers are vested in judges rather than juries. The 19-page filing argues that the procedure violates the sixth and 14th amendments to the United States Constitution, which require that “other than prior convictions, any fact increasing the statutory maximum (sentence) must be submitted to a jury and proven beyond a reasonable doubt.”
The attorneys wrote that the Montana Code Annotated is flawed because it allows judges to evaluate whether or not there are mitigating or aggravating circumstances to support the death penalty and gives them the ultimate power to decide whether or not to pronounce a capital sentence.
Monday, March 07, 2011
New report taking "the long view" on Ohio's crowded prisons notes Blakely's impact
The Ohio Criminal Sentencing Commission has released this fascinating new report titled "Prison Crowding: The Long View, With Suggestions." There are lots of interesting part of this document, but these parts from the executive summary strike me as especially blog-worthy:
Most of this report takes you through the recent history of Ohio’s prison population (see A Short Primer on Prison Crowding, beginning on p. 4). As Ohio faces record deficits and record prison populations, that primer should be worth 15 minutes of your time. The table on p. 6 is especially useful. Several informed suggestions designed to ease the problem begin on p. 14. Here are a few of the report’s highlights:
• Ohio prisons now hold about 50,500. That’s 6½ times the number held in 1974. That puts the prison system 31% over its rated capacity, with about 12,500 more inmates than the prisons were built to hold...
• For years, the prison population increased as prison intake grew. However, recent growth in Ohio’s prison population — even with mandatory sentences and scores of bills that increase penalties for particular offenses — is not driven primarily by intake (although it is a factor). It’s largely fueled by increases in inmates’ average length-of-stay...
• In the past 35 years, the only period in which the Ohio prison population remained relatively static was the first decade under S.B. 2, from 1997-2006. That bill increased the actual time served for high level offenders but made tradeoffs for others, including meaningful checks on length-of-stay....
• A peculiar line of U.S. Supreme Court cases led the Ohio Supreme Court to strike down S.B. 2’s key length-of-stay restrictions in 2006. Even when accounting for other factors, these decisions led to an increase in average time served of almost 5 months per inmate. The cumulative “Blakely/Foster effect” so far has been well over 4,000 beds. None of this growth came from tough-on-crime legislation.
Tuesday, February 15, 2011
Prosecutors win one round of the sentencing reform debate in Indiana
This interesting new story from Indiana, headlined "Daniels-backed prison reform is dealt a blow by prosecutors," spotlights how readily a legislature can morph a sentence-reducing reform proposal into a sentence-enhancing reform proposal. Here are the details:
A criminal justice reform bill that Gov. Mitch Daniels hoped would save more than $1 billion by reducing the number of people held in prison is headed to the Senate floor. But the bill, approved 8-2 by a Senate committee Monday, has changed so much because of pressure from prosecutors that it's no longer clear whether it will save any money in the long term.
"We just don't accept the idea that because the Department of Correction has a bed problem that we should be releasing serious felons back on the street," said Sen. Sue Glick, R-LaGrange, a member of the Senate's Corrections, Criminal and Civil Matters Committee. Despite the setback, the governor's office pointed out that Senate Bill 561 could easily change again. Both the full Senate and the House will have opportunities to amend it....
Many of the provisions of the original bill -- aimed at diverting low-level drug offenders to treatment and community corrections -- still remain in some form. But the bill's overhaul is a major victory for prosecutors, who persuaded lawmakers to add a provision ensuring serious violent felons serve at least 85 percent of their sentences. Currently, most offenders have to serve only half their sentences because they earn a day of credit for each day of good behavior....
Prosecutors also headed off an effort in the original bill to reduce the "drug-free zones" -- the 1,000-foot areas around schools, apartment complexes, public parks and housing projects where drug transactions carry an enhanced sentence -- to 200 feet. A study by DePauw University students found that 53 percent of the area inside I-465 is in a drug-free zone. Sometimes, the students found, offenders facing the enhanced charges had been selling drugs in their own apartments with no children present.
Daniels and Chief Justice Randall Shepard had strongly endorsed the reforms, and in his State of the State speech this year, Daniels told lawmakers the package aimed for "smarter" incarceration and urged them to "seize this opportunity." But those savings are called into question by the prosecutors' 85 percent provision, which will force the Department of Correction to house serious felons much longer than the think tanks had anticipated. The researchers' analysis also anticipated that reducing the 1,000-foot drug-free zones would lead to fewer sentence enhancements.
The bill somewhat accomplishes one of its original key goals -- bringing some of Indiana's unusually harsh penalties for low-level offenses more into line with neighboring states. Theft of less than $750 would no longer be a felony; it would be a misdemeanor. Prison time for selling and possessing cocaine and methamphetamine would be shorter. "There's a lot of things in that bill that are good," said Larry Landis, executive director of the Indiana Public Defender Council.
Lawmakers also added an effort to help low-level felons rejoin society, though prosecutors expect to target that provision for elimination. A person convicted of a nonviolent felony crime could petition the court to make that conviction invisible to employers -- though not to police -- after waiting eight years from the end date of their sentence.
Thursday, December 30, 2010
Ohio Supreme Court decides Ice did not freeze out part of its prior Blakely ruling
Yesterday, the Ohio Supreme Court issued an interesting decision that had the Ohio Justices debating a post-Blakely sentencing issue that would make a great paper topic in an advanced con law seminar. The start of the majority opinion in State v. Hodge, No. 2010-Ohio-6320 (Dec. 29, 2010) (available here), sets up the basic story:
In State v. Foster, 109 Ohio St.3d 1, this court held some sections and provisions of Ohio’s sentencing statutes unconstitutional based on the decisions of the United States Supreme Court in Blakely v. Washington (2004), 542 U.S. 296, and Apprendi v. New Jersey (2000), 530 U.S. 466.
Among the provisions held unconstitutional in Foster were those requiring a trial judge to make certain findings prior to imposing consecutive sentences, R.C. 2929.14(E)(4), and creating presumptively concurrent terms, R.C. 2929.41(A). To remedy this constitutional defect, these provisions were severed from the remaining, valid portions of the statutory sentencing framework. After the decision in Foster, trial judges who imposed consecutive sentences did not need to apply the provisions severed by Foster but instead were to apply the law that was displaced by the enactment of the severed provisions. The trial court in this case, as allowed by our decision in Foster, imposed consecutive sentences without making factual findings under R.C. 2929.14(E)(4) or presuming that sentences were to run concurrently under R.C. 2929.41(A).
Subsequent to Foster, the United States Supreme Court, in Oregon v. Ice (2009), 129 S.Ct. 711, upheld the constitutional validity of an Oregon statute similar to Ohio’s pre-Foster sentencing statutes that requires Oregon’s trial judges to make factual findings prior to imposing consecutive sentences.
The defendant in the case now before us asks us to hold that Oregon v. Ice reinstated or revived the Ohio statutory provisions pertaining to consecutive sentences that were held unconstitutional in Foster. He also argues that certain defendants who were sentenced to consecutive terms after Foster must be resentenced pursuant to the provisions that were invalidated in Foster.
For the reasons that follow, we determine in the circumstances present here that Ice does not revive the disputed statutory provisions and that defendants who were sentenced by trial judges who did not apply those provisions are not entitled to resentencing. We accordingly affirm the judgment of the court of appeals.
Although we affirm the judgment below, we acknowledge that given the holding and reasoning of the United States Supreme Court in Ice, the General Assembly is no longer constrained by Foster’s holdings regarding the constitutionality of the consecutive-sentencing provisions invalidated in Foster, and may, if it chooses to do so, respond with enactment of a statutory provision in light of Ice’s holding.
The start of a dissent by Chief Justice Brown highlights the interesting constitutional issues that flow into this issue:
I agree with the majority that Oregon v. Ice (2009), 129 S.Ct. 711, does not overrule this court’s decision in State v. Foster, 109 Ohio St.3d 1, regarding Ohio’s consecutive-sentencing statutes, and that the issuance of Ice does not automatically revive or reinstate the consecutive-sentencing statutory provisions held unconstitutional in Foster. But Ice does demonstrate that the analysis used by this court in Foster regarding judicial fact-finding and consecutive sentences was incorrect. The majority all but concedes that it erred in holding in Foster that R.C. 2929.14(E)(4) and 2929.41(A) are unconstitutional because they require judicial finding of facts not proven to a jury beyond a reasonable doubt or admitted by the defendant before the imposition of consecutive sentences. Majority Opinion at ¶ 10. Despite this court’s error in Foster, however reasonable it may have been at the time it was issued, the majority essentially refuses to correct this error because it believes it is too inconvenient to do so. In so holding, the majority violates the fundamental principle of separation of powers and ignores the intent of the General Assembly. Therefore, I dissent.
Tuesday, December 21, 2010
Split Missouri Supreme Court upholds LWOP adult sentence for 15-year-old cop killer
The Missouri Supreme Court today in a split 4-3 ruling upheld against various challenges an LWOP sentence for a 15-year-old murderer in Missouri v. Andrews, No. SC91006 (Mo. Dec. 21, 2010) (available here). Here is how the majority opinion gets started:
Antonio Andrews appeals the jury's verdict finding him guilty of first degree murder for shooting and killing a police officer and the sentence imposed on him for that crime of life without parole. This case came directly to this Court because Andrews challenges the constitutional validity of two Missouri statutes. He challenges Missouri's juvenile-certification statute, § 211.071, RSMo 2000, as violating his right to a jury trial in a criminal prosecution under the Sixth Amendment as applied in Apprendi v. New Jersey, 530 U.S. 466 (2000). He also challenges the validity of the mandatory sentencing of a minor to life without parole for committing first degree murder as prescribed by § 565.020, RSMo 2000, as violating the Eighth Amendment prohibition against cruel and unusual punishment. In addition, Andrews appeals the jury's verdict claiming that there was insufficient evidence from which a reasonable jury could conclude Andrews committed first degree murder. Finally, Andrews claims the trial court erred by overruling his motion in limine, which sought to prevent uniformed police officers from being present during the jury trial. Affirmed.
A lengthy dissenting opinion by Justice Wolff asserts that the defendant in this case had his Eighth Amendment rights violated. He states that "[s]entencing juvenile offenders to life without the possibility of parole is cruel and unusual punishment because society’s standards have evolved to prohibit it." Another lengthy dissenting opinion by Justice Stith finds asserts that the defendant in this case had his Sixth Amendment rights violated. She states:
When a court decides that a juvenile is to be tried as an adult, Apprendi requires that the Sixth Amendment command of a jury trial be obeyed. The jury’s verdict alone in this prosecution is insufficient to punish a 15-year-old defendant such as Antonio with a lifetime in prison. To prosecute Antonio as an adult, and to impose a sentence of life without parole, the additional fact-finding mandated by Missouri’s juvenile certification process also is necessary. To allow this additional fact-finding to be made by a judge and not by a jury violates the defendant’s fundamental right to a jury under the Sixth Amendment of the United States Constitution.
It will be very interesting to see if four Justices of the US Supreme Court might have an interest in taking up either of the (crisp?) constitutional issues presented by this case.
Sunday, December 12, 2010
Incoming Ohio Governor Kasich having to face over-crowded prisons and tight budgets
The Columbus Dispatch this morning has an above-the-fold, front-page article on Ohio's prison problems. Here are lengthy excerpts from this effective article, which is headlined "Prison reform awaits Kasich; Changing overcrowded system won't be easy":
[Ohio] prison administrators have been pushing for years to stem the tide of incoming inmates to save money and reduce crowding. Ohio prisons house 50,976 offenders (33 percent over capacity), have a staff of more than 13,300 employees and a two-year, $3.54 billion budget.
That makes prisons one of the largest single categories in the state budget, accounting for roughly 7 percent of general fund spending, and a top target for cutbacks as state officials struggle to deal with an impending $8 billion shortfall.
Gov.-elect John Kasich has made it clear that changes in prisons, including privatization and sentencing reform, will be in his sights when he takes office Jan. 10. "Everything is on the table. Is it possible to have private companies run prisons, build prisons? Of course it is; we're looking at it," Kasich told The Dispatch last week. "But corrections reform is critical. It's one of the big cost sinks that we have. We've got some states that are releasing people because they can't control their costs. We have to think intelligently about how we're going to do this."
Kasich, who beat incumbent Democrat Gov. Ted Strickland last month, said locking up offenders who have committed "relatively minor crimes" in costly state prisons "doesn't make sense to me. "You want to put your prisoners in an environment where the public is safe, but where it's the least costly," he said.
One of the complaints Kasich has voiced frequently since the Nov. 2 election is that Ohio locks up "check-kiters and people who don't pay child support" when they could be punished at lower cost outside prison. However, the state prison census shows there were 51 offenders behind bars for writing bad checks and 372 for failure to pay child support. Those categories, combined, account for less than 1 percent of the total prison population.
Cutting costs sounds reasonable but isn't easy in an overcrowded system with high security needs and court-ordered mandates for medical and mental-health care of inmates.
New Department of Rehabilitation and Correction budget estimates reveal the consequences of even a 10 percent cut, including the closing of prisons and the layoff of more than 2,500 employees. It also could mean eliminating funding for 972 halfway-house beds, 1,547 community-diversion offenders and 2,200 offenders in city and county jail programs funded by the state.
As for privatizing, the state already contracts for the operation of two private prisons: North Coast Correctional Treatment Facility, a 552-bed, minimum-security facility for alcohol and drug offenders in Grafton in Lorain County, and the Lake Erie Correctional Institution, a 1,380-bed, minimum- and medium-security prison in Conneaut in Ashtabula County. Both are operated by Management & Training Corp. of Centerville, Utah....
State lawmakers vigorously resisted a sentencing-reform proposal that had bipartisan support from the Strickland administration and state Sen. Bill Seitz, R-Cincinnati.
Included in Strickland's proposed two-year budget in 2009 -- but stripped out by fellow Democrats -- was a proposal to reduce the prison population by more than 6,400 inmates, saving $29.1 million annually. It would have granted "earned credit" to release 2,644 prisoners, diverted 2,644 nonviolent offenders to community programs, sentenced 527 child-support violators to community sanctions and reduced re-sentences for parole violations by 591.
Seitz introduced a version of the proposal, but it also died under withering criticism from prosecutors and conservative Republican legislators. More recently, prisons chief Ernie Moore said he wants to reduce the prison population to 48,000 by 2013. He plans to divert more inmates to transitional control, work with judges to reduce the number of offenders returned to prison for technical violations and boost community programs for higher-risk offenders.
I am very pleased to hear my new Governor say that "everything is on the table" for dealing with these prison crowding and expense issues in Ohio. I wonder if that really include drug offense and structured sentencing reform as well as back-end sentencing policy changes like more earned-time credit.
Among many interesting aspects of the Ohio sentencing and corrections story is the fact that, as detailed in this recent report, prison terms have gone up since the Ohio Supreme Court responded to the Blakely SCOTUS decision by giving Ohio sentencing judges greater sentencing discretion. Unlike in the federal system, where the guidelines tend to drive up prison terms, in Ohio structured sentencing reforms tended to keep prison sentences down. But since that structure became just advisory in Ohio, sentence lengths have crept up.
Tuesday, November 16, 2010
Blakely meets Crawford in interesting NC appeals court ruling
A couple of helpful readers alerted me to an interesting opinion issued today by a North Carolina intermediate appellate court in North Carolina v. Hurt, No. COA09-442 (N.C. App. Nov. 16, 2010) (available here). This paragraph from early in the opinion highlights why Hurt is a must-read for all hard-core Sixth Amendment fans:
Whether a defendant has a right to confront witnesses against him at sentencing trials conducted pursuant to Blakely is an issue of first impression in our courts. Defendant contends that United States Supreme Court decisions Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004), and, by extension, Melendez-Diaz v. Massachusetts, 557 U.S. __, 174 L. Ed. 2d 314 (2009), should apply at all sentencing proceedings, whether capital or non-capital, that are held before a jury. For the reasons discussed herein, we agree that the Confrontation Clause of the Sixth Amendment applies to all sentencing proceedings where a jury makes the determination of a fact or facts that, if found, increase the defendant’s sentence beyond the statutory maximum. Thus, because the trial court’s admission of testimonial hearsay evidence during the aggravation phase of Defendant’s sentencing proceedings violated the Confrontation Clauses of the federal and state constitutions and the constitutional errors were not harmless beyond a reasonable doubt, we remand this case for a new sentencing hearing.
Thursday, October 21, 2010
Arguments made to Missouri Supreme Court against mandatory juve LWOP
This local article, which is headlined "Mo. high court is asked to end mandatory life sentences for young killers," reports on a notable effort to extend the Supreme Court's recent Eighth Amendment work in Graham (with dash of Blakely throw in for good measure). Here are the details:
An attorney for a St. Louis teen, sentenced to spend his life in prison after he was convicted of killing police officer Norvelle Brown, argued Wednesday that juveniles should not receive automatic life sentences.
Attorney Brocca Smith said that for a juvenile, a mandatory sentence of life in prison without parole is cruel and unusual punishment and urged the Missouri Supreme Court to declare it unconstitutional. Smith limited her argument to juveniles and only those who have received an automatic sentence of life without parole.
Missouri law requires people convicted of first-degree murder to be executed or sentenced to life in prison. Smith said the problem with mandatory sentences is judges and juries cannot consider juveniles' age, maturity and other mitigating factors before deciding upon the punishment. "Children are simply not as culpable as adults, and they can't be treated the same under the law," she said....
Missouri Supreme Court Judge Laura Denvir Stith, who was among the most active with her questioning during oral arguments Wednesday, said the next question with juveniles was whether it is acceptable to sentence teens to life automatically without evaluating each defendant....
Missouri Assistant Attorney General Evan Buchheim defended the life sentence Wednesday. He told the state high court that nearly every state has lifetime prison sentences and that the U.S. Supreme Court specifically permitted life sentences for juveniles in murder cases. Buchheim argued there is little difference whether the punishment is selected or required by state law. "It seems to me to be the same thing — a mandatory life without parole sentence or a sentence of life without parole."...
Besides mandatory life sentences, the Missouri Supreme Court also was considering the constitutionality of the state's system for deciding whether juveniles should be prosecuted as adults.
Under Missouri law, juveniles are handled by special courts that focus on improving behavior and are not treated like criminal cases. Children as young as 12, however, can be charged with a felony as an adult depending on the circumstances of the case. A judge decides whether the defendant should be prosecuted as a juvenile or adult.
Smith argued Wednesday that decision should be made by a jury because the decision significantly affects the possible punishment. The attorney general's office contends that a judge can decide whether a juvenile should be charged as an adult because juries only are required to decide the facts that affect criminal penalties.
Knowledgeable readers should recall that the Missouri Supreme Court was the first to decide a few years ago that all juve killers should be categorially prohibited from facing the death penalty, a decision that was affirmed by the Supreme Court in its 2005 Roperruling. It will be interesting to see if the same court might become a pace-setting in these other juve sentencing contexts.
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.
Monday, October 18, 2010
En banc Second Circuit rejects Apprendi challenge to NY persistent felony statute
It has been quite some time since Sixth Amendment fans have had a big, split Apprendi/Blakely opinion to chew on. Today the Second Circuit has filled the void with a big, split en banc ruling in Portalatin v. Graham, 07-1599 (2d Cir. Oct. 18, 2010) (available here). Here is how the majority opinion (per Judge Wesley) gets started:
Petitioners Carlos Portalatin, William Phillips, and Vance Morris were separately convicted in state court and received sentences pursuant to New York’s persistent felony offender statute, N.Y. Penal Law § 70.10. Each petitioned for a writ of habeas corpus on the ground that the New York courts engaged in an unreasonable application of clearly established federal law in affirming their sentences. Specifically, they argue that the Sixth Amendment guarantee of the right to an impartial jury, as construed by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny, proscribes the long-used sentencing procedure in New York that results in judicially enhanced sentences for certain recidivist offenders.
In the case of petitioner Portalatin, the United States District Court for the Eastern District of New York agreed, issuing a writ of habeas corpus from which the State now appeals. See Portalatin v. Graham, 478 F. Supp. 2d 385, 386 (E.D.N.Y. 2007) (Gleeson, J.). In the cases of petitioners Phillips and Morris, the United States District Court for the Southern District of New York separately declined to issue such writs. See Phillips v. Artus, No. 05 Civ. 7974, 2006 WL 1867386, at *1 (S.D.N.Y. June 30, 2006) (Crotty, J.); Morris v. Artus, No. 06 Civ. 4095, 2007 WL 2200699, at *1 (S.D.N.Y. July 30, 2007) (Sweet, J.). Petitioners appealed.
In a consolidated appeal, a panel of this Court concluded that New York’s persistent felony offender sentencing scheme violates the Sixth Amendment, and that the New York courts unreasonably applied clearly established Supreme Court precedent in holding otherwise, but remanded the matters to the district court for consideration of whether those errors were harmless. See Besser v. Walsh, 601 F.3d 163, 189 (2d Cir. 2010).
A majority of judges in active service then called for this rehearing en banc. The Court now holds that the state courts did not engage in an unreasonable application of clearly established Supreme Court precedent in affirming the convictions. Accordingly, the grant of the writ to Portalatin is reversed, and the denials of the writ to Phillips and Morris are affirmed.
Here is a key passage from the start of Judge Winter's dissent:
My colleagues rely heavily upon AEDPA deference but identify only one constitutional argument dispositive of the claims of all petitioners -- regarding the applicable maximum sentences for Apprendi purposes -- and that one has been specifically rejected by the Supreme Court in Cunningham v. California, 549 U.S. 270 (2009) and Blakely v. Washington, 542 U.S. 296 (2004). Except for that discussion, my colleagues’ opinion never responds directly to petitioners’ claims and proffers no other identifiable constitutional theory to which AEDPA deference can be given.
We can all be virtually certain that one or more of the losing NY defendants in this case will appeal to the US Supreme Court. Less clear is whether the current Justices are interested in another round of Apprendi/Blakely squabbling. I would not be suprised if new Justices Alito and Sotomayor have an interest in sharing their perspectives on the reach of Apprendi/Blakely, but I also would not be surprised if most of the other Justices are content to take a pass.
October 18, 2010 in Almendarez-Torres and the prior conviction exception, Blakely in the States, Blakely in the Supreme Court, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10) | TrackBack
Monday, August 23, 2010
Interesting split Sixth Circuit ruling on Blakely-based habeas action from Ohio
Hard-core Blakely fans and/or hard-core habeas fans will want to be sure to check out today's work by a split Sixth Circuit today in Cvijetinovic v. Eberlin, No. 08-3629 (6th Cir. Aug. 23, 2010) (available here). Here is how the majority opinion in Cvijetinovic gets started:
Warden Michelle Eberlin appeals the district court’s order conditionally granting Ohio prisoner Alexsandar Cvijetinovic’s petition for a writ of habeas corpus. In the petition, Cvijetinovic claimed that his presumptive sentence was enhanced on the basis of judge-found facts, a practice forbidden by the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004). Though it determined that Cvijetinovic’s Blakely claim was procedurally defaulted, the district court granted relief, holding that he had established cause and prejudice. The district court’s conclusion with respect to cause was premised on the notion that, at the time of his default, the legal basis for Cvijetinovic’s claim was not reasonably available. However, the principle at the heart of Blakely had already been articulated in Apprendi v. New Jersey, 530 U.S. 466 (2000), which spawned myriad Blakely-type claims in the months preceding Cvijetinovic’s appeal. We therefore reverse.
Here is how the dissent by Judge Keith in Cvijetinovic gets started:
The majority’s interpretation of Engle v. Isaac, 456 U.S. 107 (1982), in line with Eleventh Circuit precedent, would require defense counsel to anticipate and articulate constitutional arguments that are contrary to controlling Supreme Court precedent. See, e.g., Pitts v. Cook, 923 F.2d 1568, 1571 (11th Cir. 1991). This reading is not only unfounded but also poses worrying policy concerns. Because counsel’s failure to articulate a Blakely claim prior to Blakely, itself, constitutes sufficient cause to excuse procedural default, I respectfully dissent.
Friday, April 02, 2010
"2,500 cons could get 'spring' break"The title of this post is the headline of this New York Post article discussing the possible consequences of the Second Circuit's important ruling earlier this week that declared unconstitutional New York state's Persistent Felony Offender sentencing law (basics here). Here's more:
The cell doors aren't being sprung open just yet -- but as many as 2,500 career criminals statewide could challenge their lengthy prison sentences because of a controversial federal court ruling. The ruling effectively killed a popular "three strikes and you're out" provision of the criminal code that gave judges great leeway in sentencing habitual offenders to life in prison.
There were 2,467 inmates serving 15 years to life as "persistent felony offenders" as of Jan. 1, according to the state Department of Correction. Many of these felons could now request their sentences be overturned after the US 2nd Circuit Court of Appeals ruled Wednesday that the repeat-offender sentencing laws for nonviolent offenders is unconstitutional.
Of the 2,467 persistent felony offenders, just 183 are confirmed to be nonviolent. The remainder of the inmates are in a gray area, with mixed violent and nonviolent records that make it difficult to determine how many could take advantage of the ruling and get out early.
"Some of these guys are persistent violent felony offenders and will not be affected. Some of them may not be violent offenders," said Correction spokesman Erik Kriss. "It's hard to know whether all 2,284 would or wouldn't be [applicable]," he added.
Wednesday, March 31, 2010
Second Circuit rules NY Persistent Felony Offender law now clearly violates BlakelyVia a lengthy ruling today in Besser v. Walsh, No. 05-4375 (2d Cir. Mar. 31, 2010) (available here), a panel of the Second Circuit has declared unconstitution New York state's Persistent Felony Offender sentencing law. Here is a key paragraph from the start of Judge Winter's opinion for the panel:
We hold that the Sixth Amendment right to a jury trial, applicable to the states as incorporated by the Fourteenth Amendment, prohibits the type of judicial fact-finding resulting in enhanced sentences under New York’s PFO statute. We also hold that this prohibition was not clearly established until Blakely v. Washington, 542 U.S. 296 (2004). Because Besser’s conviction became final before Blakely issued, the state court decisions upholding his conviction were neither contrary to nor an unreasonable application of clearly established federal law. We therefore affirm the denial of the writ as to Besser. However, because the relevant state court decisions upholding enhanced sentences for Phillips, Morris, Portalatin, and Washington were issued after Blakely, those decisions were not reasonable applications of clearly established law. Nevertheless, we remand these cases to the district court for a determination of whether the error was harmless.
It will be very interesting to see if New York considers appealing this ruling to the full Second Circuit or to the US Supreme Court. Any predictions, dear readers?
Thursday, March 25, 2010
Sixth Circuit affirms habeas relief finding Ohio sentencing scheme Blakely problematicThe Sixth Circuit has an interesting little opinion today in a habeas case coming from the Ohio state courts involving a Blakely challange to an enhanced sentence. The ruling in Villagarcia v. Warden, Noble Correctional Inst., No. 07-3619 (6th Cir. Mar. 25, 2010) (available here), is not especially surprising in light of what is noted in a key footnote of the opinion:
We observe that the instant case presents the unusual fact situation wherein the Ohio Supreme Court has itself concluded that the analysis employed by the Ohio Court of Appeals in rejecting Villagarcia’s claim is contrary to and demonstrates a misunderstanding of Blakely. The Ohio Supreme Court observed that the “Supreme Court of the United States has repeated its holding that ‘[if] a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact – no matter how the State labels it – must be found by a jury beyond a reasonable doubt.’” Foster, 845 N.E.2d at 489 (quoting Ring v. Arizona, 536 U.S. 584, 602 (2002), citing Apprendi, 530 U.S. at 482-83) (emphasis in original).
The Villagarcia opinion also includes an extended discussion of harmless error review in this sentencing context.
Thursday, March 11, 2010
"Rethinking Crime — Again"The title of this post is the headline of this fantastic new commentary on crime and punishment from John J. Di Iulio, Jr. appearing in the journal Democracy. The piece is a must-read for anyone interesting in crime realities and punishment policies, and it includes a final big section recommending "Six Steps to Zero Prison Growth" that include getting rid of mandatory minimum sentencing terms and considering marijuana legalization. And here is how the piece concludes:
America has long experienced unacceptable levels of crime, including predatory violence by and against our youth and young adults. And there is no denying that, 16 years into a national crime drop, the levels remain unacceptable in absolute terms and higher than they were in the early 1960s. But there are better ways to measure crime and better ways to meet that half-century-old crime challenge. After growing at an average annual rate of 6.5 percent during the 1990s, the prison population has grown at an average annual rate of 1.8 percent since 2000.
But prison populations need not grow at all over the next decade if Washington policymakers act soon to usher in more humane and cost-effective crime policies. Americans need not continue to purchase such safety as they enjoy by forsaking freedom for themselves and depriving it to others. We can instead reclaim for ourselves, for our children and grandchildren, and for the children and families of prisoners and ex-prisoners, such lost social and civic luxuries as unlocked front doors, lone late-night walks wherever you please, and everyday life lived among friends and fellow citizens in real American communities. Call the new federal crime bill "The Zero Prison Growth, Youth Violence Prevention, and Compassionate Drug Policy Act of 2010." And let the next, and best, crime drop in modern American history begin.
Tuesday, November 10, 2009
Brief Sixth Circuit opinion rejects Blakely challenge to Michigan sentencing systemThis 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.