Wednesday, December 14, 2005
Latest FSR issue on Blakely in the States
I am pleased to announce that another issue of the Federal Sentencing Reporter is at the press. This latest issue shifts FSR briefly away from the Booker beat — which we've covered in our last two issues examining "The Booker Aftershock" and "Is a Booker Fix Needed?" — and back to the Blakely beat. Recall that, in the months after the Blakely decision, FSR produced three Blakely issues, which are discussed here and here and here. (General information about ordering FSR is here and the journal can accessed electronically here.)
The return to the Blakely beat has this latest FSR issue focused on the "State of Blakely in the States." As you can see from the issue's contents, which are listed below, the amazing editorial team of Prof. Steve Chanenson and The Vera Institute's Dan Wilhelm has assembled a fantastic collection of original articles on how the Blakely earthquake has rumbled through the states.
The materials in this FSR issue reinforce my sense that the story of Blakely in the states is even more conceptually rich and dynamic than the story of Booker in the federal system. And, for a conceptual rich and dynamic overview of state Blakely matter, be sure to read this FSR issue's Editors' Observations, which can be downloaded below.
- Steven L. Chanenson and Daniel F. Wilhelm, Evolution and Denial: State Sentencing after Blakely and Booker Download state_of_blakely_ed_obs.pdf
- Don Stemen and Daniel F. Wilhelm, Finding the Jury: State Legislative Responses to Blakely v. Washington
- Dale G. Parent and Richard S. Frase, Why Minnesota Will Weather Blakely's Blast
- Ronald F. Wright, Blakely and the Centralizers in North Carolina
- Lenell Nussbaum, Sentencing in Washington after Blakely v. Washington
- Tom Lininger, Oregon's Response to Blakely
- Bennett Barlyn, Sentencing Law Under the Knife: Judicial Surgery, the New Jersey Supreme Court and State v. Natale
- David Louis Raybin, The Anticipated Resolution of the Blakely Split of Authority in the States: Will the United States Supreme Court Dance the Tennessee Waltz?
- Jonathan D. Soglin and J. Bradley O'Connell, Blakely, Booker, & Black: Beyond the Bright Line
- Tony Ortiz, The New Mexico Sentencing Commission's Legislative Proposal Subsequent to Blakely v. Washington
Thursday, December 01, 2005
Minnesota Supreme Court limits reach of "prior conviction" exception
While the federal courts, aided by Booker, continue to undermine Fifth and Sixth Amendment procedural rights at sentencing (see, e.g., today's Second Circuit ruling on enhancing sentences based on acquitted conduct), many state courts continue to give Blakely and procedural rights at sentencing the respect they seem to deserve. For example, the Minnesota Supreme Court today in Minnesota v. Henderson, 03-1898 (Minn. Dec. 1, 2005) (available here), limited the reach of the "prior conviction" exception to Apprendi and Blakely.
Henderson involves a state sentencing enhancement based on a determination of a "pattern of criminal conduct," which the lower court said was not impacted by Blakely because it is "a legal conclusion, not a finding of fact." The Minnesota Supreme Court disagreed:
The relevant rule from Apprendi dictates that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt." Apprendi, 530 U.S. at 490. The Apprendi Court made it clear that recidivism is a narrow exception to the general rule that all facts going to punishment must be found by a jury. Therefore, the additional findings involved in the comparison and weighing of bad conduct go beyond the acceptable parameters of the recidivism exception, because they involve more than the fact of prior convictions. We hold that the determination of a pattern of criminal conduct under Minn. Stat. § 609.1095 goes beyond solely the fact of a prior conviction and, therefore, the imposition of an enhanced sentence based on the district court's finding of a pattern of criminal conduct violated Henderson's Sixth Amendment right to trial by jury.
Monday, November 28, 2005
Argument in NJ over application of Atkins
As noted in this Newsday article, the New Jersey Supreme Court is scheduled on Tuesday to hear arguments in NJ v. Jimenez concerning the procedures for adjudicating mental retardation claims by capital defendants in the wake of Atkins v. Virginia. As detailed in this post and this follow-up, the lower court in Jimenez held, based in part on Apprendi and Blakely, that prosecutors seeking the death penalty must prove a defendant is not mentally retarded beyond a reasonable doubt. The arguments can be viewed starting at 10am at this link.
UPDATE: I caught a part of the Jimenez oral argument, which should eventually be archived here, and found it very engaging and thought-provoking. And yet, given the fact that, over the past 23 years, New Jersey has spent more than a quarter of a billion dollars on its capital punishment system without executing anyone, the actual outcome in Jimenez may not significantly impact the death penalty in the Garden State.
Saturday, November 26, 2005
Major Minnesota Blakely ruling
The Minnesota Supreme Court on Wednesday issued a major Blakely opinion in State v. Allen, No. A04-127 (Minn. Nov. 23, 2005) (available here). Here is the official syllabus for the nuanced Allen ruling:
1. The imposition of an upward dispositional departure under the Minnesota Sentencing Guidelines, based on the district court's finding that appellant was unamenable to probation, violated appellant's Sixth Amendment right to a jury trial.
2. The district court did not violate the Sixth Amendment by assigning appellant a custody-status point in determining his presumptive sentence under the Sentencing Guidelines.
Notably, the Allen court rejects an offense/offender distinction advanced by the state to try to keep Blakely's from reaching upward dispositional departures (a distinction I develop in my article "Conceptualizing Blakely," 17 Fed. Sent. Rep. 89 (2004) (available here) and in other recent writings). However, the Allen court does give Blakely's "prior conviction" exception a somewhat broadened scope in order to conclude that Blakely did not impact judicial factfinding concerning "custody-status points."
Sunday, November 20, 2005
Significant Minnesota Blakely opinion
Last week, the recent Minnesota Supreme Court issued an interesting and important ruling in State v. Barker, No. A04-1453 (Minn. Nov. 17, 2005) (available here). Previously discussed here following a March ruling by the state Court of Appeals, Barker raised the issue of whether the US Supreme Court's Harris decision, which allows for judicial fact-finding in support of mandatory minimums, might permit such fact-finding when the mandatory minimum sentence is greater than the presumptive guideline sentence.
The Minnesota Supreme Court decision in Barker reaffirms that imposition of a higher "mandatory minimum sentence" sentence still violates Blakely when based on facts not found by a jury. (In other words, Blakely trumps Harris when they are in tension.) The Barker case also covers some important ground concerning the meaning of what it calls "the Blakely admission exception."
Tuesday, November 08, 2005
Interesting Colorado opinion applying Blakely
The Colorado Supreme Court — which recently granted cert on six different cases raising various advanced Blakely issues — yesterday issued an interesting opinion in DeHerrera v. People, No. 04SC446 (Colo. Nov. 7, 2005) (available here). Recall that, back in May, the Colorado Supreme Court in Lopez issued long and thoughtful opinion applying Blakely to Colorado's presumptive sentencing scheme (basics here, commentary here). The DeHerrera opinion follows up, and here is the court's official summary of its work:
The Supreme Court holds that sentencing court's reliance on one Blakely-exempt or Blakely-compliant aggravating sentencing factor is sufficient to support an enhanced sentence as stated in Lopez v. People, 113 P.3d 713 (Colo. 2005). Affirming the judgment of the court of appeals, the Supreme Court holds that the sentencing court permissibly aggravated defendant's sentence based on his prior felony convictions, which are Blakely-exempt factors.
Monday, November 07, 2005
Michigan Blakely case to be argued on Tuesday
As detailed in this news account, the Michigan Supreme Court on Tuesday will hear arguments in People v Drohan to conclusively decide whether Blakely applies to Michigan's "topless" guideline sentence scheme. As previously explained in this April post when review was granted in Drohan, the Michigan Supreme Court in People v Claypool, 470 Mich. 715 (2004) (discussed here) dropped a footnote asserting that Michigan's guideline scheme operates in a manner that avoids Blakely problems. But, because that assertion came without full briefing, the Michigan Supreme Court ultimately decided to take up this important issue directly with full consideration on the merits.
Wonderfully, this page at the website of the Michigan Supreme Court provides additional background on Drohan, as well as links to all four briefs filed in this case. I will be surprised if the Michigan Supreme Court goes back on its Claypool conclusion, but predictions are always shaky post-Blakely.
Notably, because many have suggested a "topless" guidelines approach for the federal system as a response to Booker, folks interested in federal sentencing ought to keep an eye on this case in the months ahead. In addition, if the Michigan Supreme Court in Drohan does rule, because of the Harris mandatory minimum exception, that Michigan's topless guideline system avoids Blakely issues, the Drohan case could even possibly become an interesting vehicle for the Supreme Court to reconsider Harris.
Tuesday, October 25, 2005
A Tennessee view on the state Blakely mess
I recently documented in this post the dramatic divergence of opinions that has developed on the application of Blakely in those states with some form of presumptive sentencing. This divergence first started to emerge when, as detailed here, the Tennessee Supreme Court found Blakely inapplicable to Tennessee's sentencing scheme in State v. Gomez (a ruling which, as detailed here, seemed to rest on a Booker-influenced misunderstanding of Apprendi and Blakely). Now Nashville attorney David Raybin, who has been integrally involved in Tennessee Blakely developments, has authored an article urging the US Supreme Court to take up the Gomez case.
Raybin's article will appear in a forthcoming issue of the Federal Sentencing Reporter and is entitled "The Anticipated Resolution of the Blakley State Court Split of Authority: Will the United States Supreme Court Dance the Tennessee Waltz?". The article is available for downloading below, and here is its introduction:
Does United States v. Booker actually trump Blakely v. Washington? This question has been given a national forum because the practical effect of the Blakley decision was to require each state to assess whether its statutory scheme passed constitutional muster. It is an understatement to say that the results of the inquiry are certainly mixed.
This Article addresses the ensuing, significant national split of authority fostered by the state courts, in part, by fundamentally misunderstanding the subsequent Booker case. The Supreme Court has the opportunity to resolve this split by agreeing to dance with the Tennessee Supreme Court's opinion in State v. Gomez which represents the minority view suggesting that Booker does indeed trump Blakely.
Sunday, October 23, 2005
Does Blakely draw a bright line? What is that line?
Back in August 2004, right after Blakely was decided, super-SCOTUS-litigator Jeff Fisher wrote this article highlighting the "virtues of bright-line rules" such as the one articulated in Apprendi and applied in Blakely. However, the recent New Mexico Supreme Court Blakely ruling (basics here) asserts that the Apprendi-Blakely-Booker line of cases "ought not be viewed as drawing a bright line," and the California Supreme Court's summer ruling on Blakely (basics here, commentary here and here) likewise asserts that the "high court's precedents do not draw a bright line."
As the state Blakely mess reveals, Booker has certainly obscured whatever bright line Blakely may have aspired to create. Moreover, as I detail in my recent Reconceptualizing Sentencing article, the Supreme Court's sentencing jurisprudence was conceptually muddled even before Blakely and Booker came along. Writing in a similar vein in his recent Columbia Law Review article, Kevin Reitz describes the Supreme Court's Sixth Amendment jurisprudence as "constitutional Swiss cheese."
Further, depending upon how narrowly or broadly one might want to define jury trial rights, the "bright line" to be found in Blakely et al. could be quite narrow or quite broad. The narrowest reading of Blakely suggests that judges may make all sorts of findings and judgments at sentencing except juries must make findings of historical fact relating to offense conduct when those factual findings formally increase the upper limit of legally available sentences. The broadest reading of Blakely suggests that juries must make any and every finding or judgment that can have a legal impact on the defendant's sentence. (This broadest reading rejects the prior conviction exception of Almendarez-Torres and the mandatory minimum exception of Harris.)
Problematically, in the many decisions in the Blakely line of cases, one can find support for the narrowest reading of Blakely and for the broadest reading of Blakely and for many readings in between. Only time, future cases, and the work of all the Justices of the Roberts' Court will ultimately inform us as to whether Blakely in fact does draw a bright line and ast what the exact parameters of that line might be.
State Blakely mess: the split over Blakely's application to presumptive sentencing
I have now had a chance to read closely the New Mexico Supreme Court's recent ruling in Lopez, which concludes that Blakely does not impact the state's presumptive sentencing system (basics here). As I will discuss in a future post, Lopez is quite interesting and perhaps defensible even though it seems contrary to Blakely. But first I wanted to assemble in one place the dramatic divergence of opinions that has developed on the application of Blakely in those states with a form of presumptive sentencing.
RULINGS FINDING BLAKELY DOESN'T IMPACT PRESUMPTIVE SENTENCING SCHEME:
New Mexico: New Mexico Supreme Court deepens state split over Blakely, reporting on New Mexico v. Lopez (N.M. Oct. 14, 2005).
Tennessee: Tennessee dodges Blakely, so says divided state supreme court, reporting on Tennessee v. Gomez (Tenn. Apr. 15, 2005).
RULINGS FINDING BLAKELY IMPACTS PRESUMPTIVE SENTENCING SCHEME:
This list leaves out state rulings from Minnesota and Oregon which address Blakely's applicability to a full system of sentencing guidelines and also leaves out other state rulings addressing more limited Blakely issues. (A slightly dated, more complete list of state high court Blakely rulings can be found in this post and many other state Blakely rulings can be found at this index.)
Notably, the Ohio Supreme Court should soon hand down decisions in Ohio's big Blakely cases. If the Ohio Supreme Court follows the lead of most Ohio lower courts, we could have an even 5-5 split here.
Friday, October 21, 2005
New Mexico Supreme Court deepens state split over Blakely
I just got news of another major development concerning in Blakely in the states. Contributing to what I have called a form of judicial federalism, the New Mexico Supreme Court has added another chapter to the dynamic (and confusing) story of diverse state high court Blakely rulings. (Interestingly, this major New Mexico Blakely ruling apparently came down last week, but I just heard about it today and it does not yet appear on either Lexis or Westlaw.)
In New Mexico v. Lopez, No. 28 483 (N.M. Oct. 14, 2005) (available here), the New Mexico Supreme Court dodged applying Blakely to the state's sentencing system. The Lopez court relied heavily on the controversial California Supreme Court decision in Black which found Blakely essentially inapplicable to California's determinate sentencing scheme (Black basics here, commentary here and here). The Lopez decision by the New Mexico Supreme Court, along with a partial dissent from Justice Chavez, makes for quite interesting reading. Here are just a few of many notable passages from the majority opinion in Lopez:
We perceive ambiguity within Blakely and Apprendi that has contributed to inconsistent opinions from the Court of Appeals. We believe that Booker provides a basis for believing [that our pre-Blakely decision rejecting Apprendi's applicability to our sentencing system] was decided correctly. As the California Supreme Court has reasoned in Black, the United States Supreme Court cases ought not be viewed as "draw[ing] a bright line, but Booker makes clear that the concept of a discretionary sentencing decision is not limited to those decisions that involve complete, unguided, and unreviewable discretion."...
Our Legislature did not intend to confer a right to a basic sentence but rather to limit the trial court's discretion to punish within a range by taking into consideration a wide range of circumstances, and to provide for meaningful appellate review. We believe our sentencing scheme reflects an appropriate legislative deference to judicial discretion in sentencing as well as respect for the jury's role in determining guilt or innocence of crimes defined by statute. The mandatory language of Section 31-18-15(B) and writing requirement of Section 31-18-15.1(A) were intended to limit the judge's sentencing discretion by imposing a standard of reasonableness, rather than creating a right in defendants to be sentenced to the basic sentence. See Black, 113 P.3d at 543-44.... We believe New Mexico's sentencing scheme, so construed, is consistent with Booker.... We conclude, as did the California Supreme Court in reviewing its state's sentencing scheme, that New Mexico's sentencing scheme illustrates an appropriate reliance on judicial discretion to sentence following a jury verdict, bench trial, or guilty plea.
Saturday, October 15, 2005
Alaska on Blakely's applicability to juvenile transfer
One interesting issue concerning the reach of Apprendi and Blakely concerns their potential applicability to the judicial fact-finding required in many states for transfering a juvenile offender to an adult court (where, typically, a much higher maximum sentence is available). I noted in this June post a Texas ruling finding Apprendi applicable to such juvenile bind-overs, and I received news of an Alaska decision yesterday going the other way.
Interestingly, the decision in Alaska v. Kalmakoff, No. A-8911 (Ala. App. Oct. 14, 2005) (available here), reveals that the trial court "concluded that the reasoning of Apprendi and Blakely applied to juvenile waiver hearings," and that a jury was needed "to determine whether Kalmakoff was not amenable to treatment as a juvenile" (the key finding in Alaska for a transfer to adult court). On appeal, the Kalmakoff court, in a thoughtful and thorough opinion, noted that nearly all "courts have held that Apprendi does not apply to a juvenile waiver proceeding because it is not a sentencing proceeding, but rather a determination of the court's jurisdiction." Deciding to follow this authority, the appellate court also give this pragmatic justification for permitting judicial fact-finding in this context:
At oral argument, Kalmakoff conceded that the State could constitutionally establish a procedure where a juvenile would have been automatically prosecuted as an adult or a procedure where a prosecutor could determine whether to prosecute the juvenile as an adult. (This decision would be similar to a decision which prosecutors make routinely — whether to prosecute an offense as a misdemeanor or a felony.) Under either of these procedures, Kalmakoff would have far fewer procedural protections, such as the right to have a lawyer represent him and the right to present evidence at a hearing in front of a judge, than he does under the current law. Therefore, Kalmakoff's claim that the current system violates his constitutional rights actually could result in far fewer procedural protections for juveniles facing a waiver of juvenile jurisdiction if the legislature chose to take those actions. Given this concession, which is sound, the balance that the legislature has chosen appears to us to be rational. We would only change this balance if we were convinced that the United States or Alaska Constitution required us to change it. Because the great weight of authority supports the constitutionality of the State's juvenile waiver procedure, we uphold it.
Wednesday, October 12, 2005
Lots of Blakely action in Colorado
As detailed in the second half of this list of announcements, yesterday the Colorado Supreme Court granted cert on six different cases raising Blakely issues of various sorts. Back in May, the Colorado Supreme Court in Lopez issued long and thoughtful opinion applying Blakely to Colorado's presumptive sentencing scheme (basics here, commentary here); yesterday's cert grants address a number of inevitable follow-up issues. Also, notably, the Colorado Supreme Court issued GVRs based on Lopez in a number of other cases.
Interestingly, one of the cert grants comes in the case of People v. Johnson; as discussed here, in Johnson an intermediate Colorado appellate court held "that Blakely applies retroactively to the date that Apprendi established its new rule." Here's how the Colorado Supreme Court frames its cert grant in this Johnson case:
Whether the court of appeals erred in holding that Blakely v. Washington, 542 U.S. 126 (2004) is retroactive to the date Apprendi v. New Jersey, 530 U.S. 466 (2000) was announced.
Because the Colorado Supreme Court did such fine work in Lopez, I will be very interested to see how it handles all these Blakely issues and especially the retroactivity issue. The Court merits credit for taking on all these important follow-up Blakely issues; perhaps it might inspire SCOTUS to follow suit.
Sunday, October 09, 2005
Will SCOTUS notice or care about Blakely errors in Tennessee?
I discussed in this post some state Blakely cases working their way up to the Supreme Court, and among the most interesting is the Gomez case from Tennessee. State Blakely fans should recall that, as detailed here, the Tennessee Supreme Court in Gomez found Blakely inapplicable to Tennessee's presumptive sentencing scheme through a ruling which, as detailed here, seemed to rest on a misunderstanding of Apprendi and Blakely.
Significantly, all the litigants involved in Gomez, including the Tennessee Attorney General, believe the Tennessee Supreme Court got Blakely wrong in Gomez. However, in its reply to the cert petition brought by the defendant in Gomez, the state argues that plain error/waiver issues should keep the US Supreme Court from taking up the case. This cert opposition, which was filed last week and is available for download below, set up the issue in a manner that might get someone's attention on One First Street:
Respondent acknowledges, as it did below, that petitioners' sentences were imposed in violation of the Sixth Amendment as interpreted in Apprendi and Blakely, that Booker does not alter that conclusion, and that the Tennessee Supreme Court's assertion otherwise is in conflict with decisions of other state supreme courts applying Apprendi, Blakely, and Booker to similar facts. See State v. Allen, 615 S.E.2d 256 (N.C. 2005), and State v. Natale, 878 A.2d 724 (N.J. 2005). Nevertheless, for the reasons that follow, review of the question presented is foreclosed on jurisdictional grounds and, in any event, is unwarranted.
Friday, October 07, 2005
State Blakely cases on SCOTUS agenda
Jonathan Soglin is doing a fine job tracking some state Blakely cases working their way up to the Supreme Court. Over at Criminal Appeal, this post notes that cert petitions are pending in Blakely cases from at least three states, and this page over at the FDAP website is tracking cases coming from California.
I believe Jonathan has been especially focused on Abeyta v. California, No. 05-5747, a case in which the defendant filed for cert in August (details here) and which is to be considered in conference by the Justices this Friday. Recall that, back in June, the California Supreme Court concluded in Black that Blakely was essentially inapplicable to California's determinate sentencing scheme (basics here, commentary here and here).
I am, of course, ever eager for the Supreme Court to take up new Blakely and Booker cases (as suggested in posts here and here). But I have a nagging suspicion that SCOTUS will continue to dodge Blakely and Booker issues over the next few months. And yet, given my poor track record for predicting SCOTUS timelines, I am not making any predictions.
Thursday, October 06, 2005
Divided Washington Supreme Court finds Blakely inapplicable to consecutive sentencing
As I was driving up to Cleveland this morning, I was thinking that there has not been a major state Blakely ruling in some time. And then, lo and behold, the news arrives that the Washington Supreme Court today in State v. Cubias, No. 75109-9 (Wash. Oct. 6, 2005), declares in this en banc opinion "that the principle set forth in Apprendi and Blakely does not apply to the imposition of consecutive sentences."
The chief ruling itself is not surprising; the decision notes that its "holding is also in line with the position taken in most other jurisdictions that have faced this issue" and cites four federal circuit decisions and 12 state rulings for this proposition. But this lively partial dissent, which garners four state Justices' votes, highlights that this issue remains quite debatable.
Monday, September 26, 2005
Another flavor of the prior conviction exception
Thanks to a reader tip, I can note a Colorado appeals court's discussion of yet another aspect of the prior conviction exception. In Colorado v. Martinez, No. 04-CA-2136 (Colo. App. Sept. 22, 2005) (available here), the court rejects the defendant's suggested narrow reading of the exception (which, as noted here, is the Ninth Circuit's approach) to hold that misdemeanor convictions do come within the exception. The Martinez opinion effectively details that many (but not all) lower state courts have likewise held that misdemeanor convictions do come within the prior conviction exception.
September 26, 2005 in Almendarez-Torres and the prior conviction exception, Blakely in the States | Permalink | Comments (0) | TrackBack
Wednesday, September 14, 2005
Significant Massachusetts ruling on sex offender sentencing
Today in Commonwealth v. Pagan, No. SJC-09332, 2005 WL 2210333 (Mass. Sept. 14, 2005) (accessible here, perhaps), the Supreme Judicial Court of Massachusetts addressed various constitutional issues (and found some constitutional problems) with a relatively new state statute for sentencing sex offenders. Here is the opinion's introduction:
The defendant appealed from the imposition of a term of community parole supervision for life (CPSL).... Specifically, he claims that (1) sentencing him as a repeat offender without indicting him as such is a violation of art. 12 of the Massachusetts Declaration of Rights; (2) G.L. c. 275, § 18, is unconstitutionally vague; and (3) G.L. c. 275, § 18, is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000).
For the reasons discussed below, we hold that a term of CPSL may be imposed lawfully on a repeat offender so long as the indictment or complaint alleges that he is a repeat offender, as required by art. 12. We further hold that G.L. c. 275, § 18, is unconstitutionally vague as to first time sex offenders because it provides uncertain and conflicting standards that fail to inform defendants, prosecutors, and judges what is required before CPSL may be imposed. In particular the statute identifies a standard of proof (clear and convincing evidence) but it contains contradictory language as to whether it is the Commonwealth or the defendant who must meet that standard, concurrently providing that the imposition of CPSL must be supported "by clear and convincing evidence" and that a determination not to impose CPSL must also be "supported by clear and convincing evidence." The statute also makes the imposition of CPSL dependent on a fact-finding process, but fails to identify what facts must be found, providing only that the judge must determine whether a defendant shall be committed to CPSL. To the extent that some of the language in the statute suggests that a judge has broad discretion to impose CPSL by applying traditional sentencing factors, it subjects that discretion to a fact-finding process that is inconsistent with that discretion. Moreover, insofar as § 18 is intended to make CPSL dependent on judicial fact finding (as opposed to the exercise of a judge's traditional sentencing discretion), it appears to violate the principle enunciated by the United States Supreme Court in Blakely v. Washington, 124 S.Ct. 2531 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000), cases that changed the constitutional requirements for enhanced penalty sentencing after CPSL was enacted.
Sunday, September 11, 2005
Minnesota struggling with its Blakely pipeline
As evidenced most recently by protestations from some 11th Circuit judges, the federal courts have struggled greatly with a range of Booker pipeline issues. And this interesting article from Minnesota details that the North Star State is struggling greatly with its own Blakely pipeline issues in the wake of the Minnesota Supreme Court's recent decision in Shattuck (discussed here). Here is a snippet:
A recent state Supreme Court opinion has some legal experts puzzling over whether dozens of the state's most dangerous felons will get out of jail early or have to be resentenced. Judges, lawyers and law professors say much of their confusion hinges on nine words at the end of the so-called Shattuck decision....
"The impact of Shattuck to me is unclear," said Dakota County Judge Robert King, Jr., .... "We didn't get a whole lot of guidance from the Supreme Court." Hoping to clear up the confusion, the Hennepin County attorney's office has asked for a formal clarification or correction of the opinion.
Saturday, September 10, 2005
Amazing state Justices
I am back from a terrific trip to North Carolina participating in this conference, and my respect for Tar Heel sentencing was further enhanced by the experience. In addition to benefiting from the many nuanced and sophisticated insights of other speakers, I have to give a special shout out to the Justices of the North Carolina Supreme Court, three of whom attended the conference just to listen(!) to defense attorneys(!) talk about sentencing. (I can't help but wonder how much better the US Supreme Court's sentencing jurisprudence might be if SCOTUS Justices made a habit of attending these sorts of events.)
Upon my return home, I received news of another event further enhancing my respect for state Justices: the Supreme Court of Washington yesterday issued a thoughtful opinion exploring Blakely's applicability to a restitution order. I received via e-mail this helpful summary of the ruling in State v. Kinneman, No. 76051-9 (Wash. Sept. 8, 2005) (available here):
On Thursday, the Washington State Supreme Court, in an unanimous decision, held:
(1) "punishment for purposes of Apprendi and Blakely includes punishments other than prison sentences";
(2) restitution under Washington law is "both punitive and compensatory", and "is strongly punitive because [the restitution statute] authorizes restitution in an amount that exceeds the amount necessary to compensate the victim" [the law authorizing the criminal trial judge to impose up to double the offender's gain or the victim's loss]; and
(3) "while restitution is punishment, it does not require jury fact-finding under the post-Blakely decision in United States v. Booker... Given the broad discretion accorded the trial judge by the statute [no restitution, in some extraordinary circumstances, up to double the offender's gain or the victim's loss], the lack of any set maximum, and the deferential abuse of discretion review standard, the restitution statute provides a scheme that is more like indeterminate sentencing not subject to Sixth Amendment jury determinations than the [statute's] determinate sentencing scheme at issue in Blakely. Booker underscores the critical fact that the mandatory and binding nature of the [statute's] provisions for imposing exceptional sentences was crucial to the holding in Blakely."
Friday, August 26, 2005
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."
Tuesday, August 23, 2005
Still more on state approaches to juvenile adjudications
Responding to posts about recent rulings from Oregon and from Ohio concerning whether juvenile adjudications come within the "prior conviction" exception to the Apprendi/Blakely rule, a helpful North Carolina reader provided this helpful report on how these issues are playing out in the Tar Heel State:
In North Carolina, we have an aggravating factor in felony sentencing for defendants with any prior adjudication as a juvenile for an offense that, if committed by an adult, would be a Class A through Class E felony. Finding of an aggravating factor permits the court to impose a sentence from the aggravated range in the sentencing grid cell where the offender's class of offense and prior record level place him.
In our "Blakely fix" legislation from this session of our General Assembly, North Carolina left determination of that aggravating factor in the hands of the judge, assuming it would fit the prior conviction exception. Other statutory aggravating factors now must be found by a jury or admitted by the defendant before they can be weighed against any mitigating factors in determining whether or not to impose a non-presumptive sentence.
On August 2nd, the N.C. Court of Appeals (our intermediate appellate division) in State v. Yarell, No. COA03-1454 (N.C. App. Aug. 2, 2005) (available here), went in the same direction as Oregon's Supreme Court, and held that prior juvenile adjudications do not fit the prior conviction exception. The decision (relevant part in only the last four paragraphs) turns solely on the term "conviction" and its application in our juvenile statutes. N.C. Gen. Stat. 7B-2412 states that "[a]n adjudication that a juvenile is delinquent or commitment of a juvenile to the Department for placement in a youth development center shall neither be considered conviction of any criminal offense nor cause the juvenile to forfeit any citizenship rights."
Saturday, August 20, 2005
More state views on juvenile adjudications and the prior conviction exception
Responding to this post about the recent Harris ruling from Oregon, which concluded that juvenile adjudications do not come within the "prior conviction" exception to the Apprendi/Blakely rule, a helpful Ohio reader informed me of a recent intermediate court ruling from Ohio on this issue. The ruling in Ohio v. Deters, No. C-010645 (Ohio 1st App. Aug. 5, 2005)(available here), ultimately holds that juvenile adjudications do come within the "prior conviction" exception. Along the way, the court provides this understated account of the state of the law on this issue:
In the wake of Blakely, several other Ohio appellate districts have allowed juvenile adjudications to be considered as a factor when enhancing a sentence. And several other jurisdictions outside of Ohio have also allowed juvenile adjudications as a sentencing factor under Apprendi or Blakely. Still others have rejected similar arguments. This split will one day have to be reconciled.
Friday, August 19, 2005
Reports on recent state Blakely action
The press this morning provides some helpful accounts of the major Blakely ruling that came from state supreme courts yesterday:
- This article from Oregon discusses the Harris case on the use of juvenile convictions at sentencing (details here).
- This article from Minnesota discusses the rulings on the impact of Blakely on guidelines cases in that state (details here).
Thursday, August 18, 2005
Minnesota Supreme Court finishes up some important Blakely work
Continuing a big state supreme court day (after this work on prior convictions from Oregon), today the Minnesota Supreme Court handed down two important Blakely rulings: State v. Shattuck, No. C6-03-362 (Minn. Aug 18, 2005) (available here) and State v. Houston, No. A-04-324 (Minn. Aug 18, 2005) (available here). Here is a helpful (and very quick) summary I received from a helpful reporter of the news: "The MN Supreme Court (in Shattuck) applies Blakely, rejects the Booker remedy, says that this defendant (and maybe all of them on direct appeal?) gets the presumptive sentence, and (in Houston) holds that Blakely announced a new rule."
Interestingly, it took the Minnesota Supreme Court a full eight months to figure out the remedy in Shattuck (the details on the court's initial ruling are here), and that ruling generates a partial dissent. Once I have a chance to review these decisions more carefully, I hope to add some commentary on these noteworthy Blakely rulings from a leading guideline state. In the meantime, perhaps readers can get started on analysis via the comments.
Saturday, August 13, 2005
Cert petition in a California Blakely case
Literally minutes after I posted the Gomez cert. petition from Tennessee, I got word from Jonathan Soglin at the First District Appellate Project of a similar cert petition filed on August 9 coming from California in the case of Abeyta v. California. You can view an electronic version of this petition at this link on the FDAP's Blakely Resources web page. According to Jonathan, this is likely the first cert petition following the California Supreme Court's suspect Black decision which challenges California's Determinate Sentencing Law.
The petition in Abeyta poses this question: "Whether, after this Court's decision Booker v. United States, 125 S.Ct. 738 (2005), the bright-line rule enunciated in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) and Blakely v. Washington, 542 U.S. 296 (2004), continues to establish a right to a jury trial and proof beyond a reasonable doubt in a state sentencing scheme identical in all relevant respects to the Washington scheme at issue in Blakely." Here are additional selections from the introduction to the argument:
Review is necessary so that this Court can reaffirm what it held in Blakely. In Blakely, this Court explicitly applied a "bright-line rule" to answer the question whether there is a right to a jury trial on facts necessary to impose a sentence higher than the statutory maximum.... United States v. Booker, 125 S.Ct. 738 (2005), implemented the Blakely holding, yet some courts — the California and Tennessee high courts in particular — perceived a blurring of the bright line in Booker. This perception emboldened them to conclude that any judicial discretion may take a sentencing scheme outside of the ambit of Blakely. Other courts have applied the bright-line rule, including the New Jersey Supreme Court, which has recently expressly rejected the California Supreme Court's interpretation of Blakely and Booker as directly contrary to this Court's precedents. State v. Natale, 2005 WL 1802084, slip op. at 26-27 (N.J. Aug. 2, 2005).
Review is, therefore, also appropriate because California's decision in Black is wrong. In fact, the approach taken by the California Supreme Court was one advocated by the State of Washington in Blakely and rejected by this Court. California's sentencing scheme unconstitutionally permits judicial fact-finding — upon proof by a preponderance of the evidence — of facts necessary to impose the aggravated (upper) term sentence. California's scheme is so identical to the scheme at issue in Blakely, and thus falls so clearly within the bright-line rule of Apprendi, that full briefing on the merits may not be required for this Court to review the Black decision.
Finally, the issue is of great significance for an enormous number of cases. The constitutionality of the core of California's determinate sentencing scheme is at issue. While some California defendants convicted of third strikes, murder, or some serious sex offenses receive presumptive indeterminate terms, the vast majority of felony defendants are sentenced under the determinate sentencing law at issue in Black and in this case.
This case provides an excellent opportunity for resolving the question presented. This case, unlike Black itself, involves only judicially-found aggravating factors related to the commission of the current offense, i.e., particular cruelty or callousness, particular vulnerability on the part of the victim (a particularly young age at the onset of the offense), sophistication and extraordinary manipulation by petitioner, and inducement of another to assist in the offense. App. C 1373-1374. This case is thus unencumbered by the complexity of recidivist-related aggravating factors possibly covered by the exception to the right to a jury trial identified in Almendarez-Torres v. United States, 523 U.S. 224 (1998). This case, also unlike Black, does not involve an aggravating factor that a jury found true in returning a probation ineligibility finding.
Cert petition in the Tennessee Blakely case Gomez
Courtesy of Nashville attorney David Raybin, I have received a copy of the certiorari petition which is to be filed on Monday seeking to garner SCOTUS review of the Tennessee Supreme Court's decision in State v Gomez. Recall that, as detailed here, the Tennessee Supreme Court in Gomez found Blakely inapplicable to Tennessee's presumptive sentencing scheme, a ruling which, as detailed here, seems to rest on a misunderstanding of Apprendi and Blakely. (Notably, every litigant involved in Gomez, including the Tennessee Attorney General, petitioned for rehearing (see details here and here), but the Tennessee Supreme Court denied rehearing.)
The cert. petition, which can be downloaded below, highlights the problems with the Gomez view of Blakely (a view which was also essentially adopted by the California Supreme Court in its Black decision). Here are highlights from the start of the argument section of the petition:
While there are minute differences between the Washington and Tennessee sentencing structures, at bottom, both systems contain a mandatory, "presumptive" base sentence beyond which a trial judge may not exceed without additional judicial factfinding. This case is indistinguishable from Blakely which held that such additional judicial fact-finding violated the Sixth Amendment....
The Tennessee Supreme Court misread Booker as somehow modifying or overruling Blakely. This interpretation is simply incorrect and represents a fundamental constitutional error. Any modification of Blakely should come from this Court and not the Tennessee Supreme Court.
The decision of the Tennessee Supreme Court, if left unresolved, will foster continued confusion in other states. Indeed, there is now a split of authority in the United States as to whether Booker trumps Blakley. Defendants in Tennessee are still being sentenced every day in contravention of the Sixth Amendment causing enormous disruption of the criminal justice system. Notions of "plain error" under state law are best resolved in the first instance by the Tennessee Supreme Court once its fundamental misapprehension of the Sixth Amendment has been corrected. Given that there is no dispute between the Petitioners and the State of Tennessee on the constitutional question presented here, this case is appropriate for summary reversal. Accordingly, this Court should grant the petition for writ of certiorari.
As this snippet highlights, there is a state plain error issue in Gomez, which makes uncertain how the Tennessee Attorney General will respond to the cert. petition. The Tennessee AG is on record saying Gomez is wrong, but the AG might not want SCOTUS involvement in this particular case. And how the Tennessee AG responds to the cert. petition could in turn impact the Supreme Court's view (or should I say the clerk's view) of whether Gomez merits review. Stay tuned.
Sunday, August 07, 2005
Off to a great NASC Conference
To really be in tune with the full national story of modern sentencing reforms (and the fall-out from Blakely and Booker), Washington DC is the place to be this coming week for the 2005 Conference of the National Association of Sentencing Commissions, which starts today and runs through Tuesday. The Conference is fittingly entitled "The Continuing Evolution of Sentencing," and the particulars are detailed in this schedule. There will be lots and lots of state Blakely and federal Booker talk throughout the conference, as well as coverage of a number of other important sentencing reform issues.
I will be heading to DC this afternoon to attend the NASC conference. I have the honor of participating in a Monday panel discussing mandatory sentencing, and I am looking forward to every session over the two days of the conference. Blogging will be light during the conference, though I hope in the evenings to report on some of what I am learning.
Wednesday, August 03, 2005
Recent Alaska Blakely decisions
An interested reader in Alaska sent me a very interesting report on four recent Alaska Court of Appeals opinions concerning Blakely that have been issued in the last few weeks. Here are portions of the report:
In Haag v. State, Op.No. 1996 (Alaska App. July 22, 2005) (available here), the applied plain-error analysis based on the defendant's failure to raise a Blakely claim at trial, and found that Haag had satisfied the plain-error standard. In remanding for resentencing, the Haag court stated that the issue of whether it would be permissible for the trial court to hold a jury trial on the disputed aggravating factor could be litigated in the trial court. (The court of appeals' statement that this is an unresolved question is significant in that several trial courts have issued sweeping rulings that Alaska's whole presumptive sentencing scheme was unconstitutional and that there was no way it could be rendered constitutional by jury trials on aggravators, because the statutory scheme didn't provide for it.)
In Peltola v. State, Op.No. 1994 (Alaska App., July 22, 2005) (available here), the court of appeals held that a defendant who conceded the aggravating factors at a post-Blakely sentencing hearing had no viable Blakely claim on appeal. Some language suggests the court may ultimately adopt the argument that once the jury finds one Blakely aggravator, that opens up the defendant to the maximum sentence at which point the judge can consider other traditional factors under a preponderance standard.
In Edmonds v. State, Op.No. 1998 (Alaska App., July 29, 2005) (available here), the court of appeals generally accepted the argument that Blakely did not apply to consecutive sentencing decisions, though the court reserved judgment on whether one common-law sentencing rule that the Alaska Supreme Court adopted years ago could potentially be a basis for applying Blakely to some consecutive sentencing decisions.
In Milligrock v. State, Op.No. 1999 (Alaska App. July 29, 2005) (available here), the court appears to implicitly take the position that Blakely error is not structural, going with a harmless or plain-error analysis, and the court ruled that prior criminal history aggravators that are based solely on the fact of a prior conviction are exempt from Blakely, and thus upheld two of Milligrock's aggravating factors. They found no plain error with respect to a third.
It is clear that the court of appeals is aware of the need to provide some guidance to trial courts and has a bunch of Blakely cases in the pipeline.... The court of appeals has greater significance in Alaska's statutory scheme because you only have an appeal as of right to the court of appeals, and their jurisdiction is limited exclusively to criminal cases. Thus they are de facto the court of last resort for most criminal matters in Alaska, although the Alaska Supreme Court will undoubtedly take discretionary review on a few of the bigger Blakely issues, just to have their say in the matter and finalize a few basic parameters. Unfortunately, they tend to take two to three times as long as the court of appeals does to issue opinions.
Tuesday, August 02, 2005
Summary of NJ Blakely rulings
I am still working my way through the New Jersey Supreme Court's application of Blakely and Booker in its three big cases released this morning (basics here); my initial reaction is that the decisions are thoughtful and dynamic additions to the list, assembled in this prior post, of the major Blakely rulings from other state supreme courts. And though I am sure all fellow Blakely addicts will read the NJ decisions in full, below I have provided for others a brief summary of the decisions prepared by the New Jersey Commission to Review Criminal Sentencing.
New Jersey applies Blakely (and Booker?)
As promised, the Supreme Court of New Jersey this morning issued its decisions in three big Blakely cases: State v. Natale, No. A-82/83-04 (N.J. Aug. 2, 2005) (available here), State v. Abdullah, No. A-73-04 (N.J. Aug. 2, 2005) (available here), and State v. Franklin, No. A-64-04 (N.J. Aug. 2, 2005) (available here). Collectively, all three opinions run more than 100 pages and appear to cover too many issues to effectively summarize (though, helpfully, the opinions each start with an official summary).
In short form, it appears that the New Jersey Supreme Court has essentially applied both Blakely and Booker: the Court finds that Blakely applies to New Jersey's sentencing scheme, but then decides it should remove the offending "presumptive term" provision of NJ Criminal Code. Here is the official summary of the holding in Natale:
A sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction violates defendant's Sixth Amendment jury trial guarantee. The penal code's presumptive terms are eliminated. Judges will sentence defendants within the statutory range for the offense after weighing the aggravating and mitigating factors.
Once I have a chance to digest these opinions, I hope to provide some commentary. In the meantime, I hope those working in New Jersey will use the comments to help enhance everyone's understanding of what this exactly means for sentencing in the real Apprendi-land.
Monday, August 01, 2005
Big Blakely day for New Jersey tomorrow
As detailed in this official notice, the Supreme Court of New Jersey at 10:00 am tomorrow will issue decisions in its three big Blakely cases, State v. Natale, State v. Abdullah, and State v. Franklin. The decisions being reviewed are described briefly and linked here, and additional background on Blakely in New Jersey can be found in prior posts here and here and here.
I have assembled in this prior post the major state Blakely rulings from other state supreme courts to date. I expect the rulings from New Jersey to be thoughtful and to reinforce my view that the dynamic realities of Blakely in the states is actually a more interesting sentencing story than what is going on with Booker in the federal system.
Wednesday, July 27, 2005
More on Ohio's Blakely cases
This AP story provides information about the argument in the Ohio Supreme Court yesterday in two big Blakely cases, as well as some broader background on how states have responded to Blakely. The oral arguments are archived on-line and can be watched here at the Ohio Supreme Court's website. I watched one of the arguments late last night and found the quality of the advocacy very high, which only served to make the issue of how Blakely should be applied in Ohio that much more confusing and challenging. (Background on Ohio's sentencing laws and Blakely's potential impact can be found here and here, and some of the interesting lower courts developments are discussed here and here.)
Tuesday, July 26, 2005
Ohio Blakely cases argued today
As previously detailed in this post, the Ohio Supreme Court this morning is hearing argument in two big Blakely cases. The oral arguments can be watched on-line here at the Ohio Supreme Court's website, and there is also this helpful official description of the cases at this link. In addition, today this AP article discusses the cases.
Sunday, July 24, 2005
Gearing up for big Ohio Blakely cases
Adding to the recent state Blakely excitements are the arguments before the Ohio Supreme Court this coming Tuesday in two big Blakely cases, State v. Foster, 2004-1568, and State v. Quinones, 2004-1771. I have done many prior posts on the status of Blakely in Ohio: Ohio's sentencing laws and practices make the state something of a Blakely bellwether (background here and here), and there have been a number of interesting twists and turns, as detailed here and here, as these Blakely issues slowly work their way up to the Ohio Supreme Court.
Thanks to helpful readers, I can report not only that these oral arguments can be watched on-line here at the Ohio Supreme Court's website, but also that there is now this helpful official description of the cases at this link. For additional background, available for download in this post is an amicus brief filed in one the cases, which provides a wonderful primer on Ohio's sentencing structure and on the potentially profound impact of Blakely in the Buckeye State.
Thursday, July 21, 2005
An overview of Blakely in the states
With the Roberts' nomination and new USSC Booker data providing so much quality blog copy, I have not recently given much attention to Blakely in the states. But, as I detailed in posts here and here earlier this month, state Blakely developments continue to be dynamic. And those interested in catching up on all the action should already have their calenders marked for next month's 2005 Conference of the National Association of Sentencing Commissions taking place in Washington DC on August 7-9. As fully detailed in this schedule, there will be lots of state Blakely discussion throughout the conference (as well as some federal Booker talk, too). You can register via this link.
My attention has returned to state Blakely stories in part because one of my crackerjack research assistants has recently assembled and organized many of my state Blakely posts in a series of Word documents. Anyone interested in taking another look at the general story of Blakely in the states can download below a collection of posts that provide an overview of basic post-Blakely state legal developments.
Thursday, July 14, 2005
More on recent Oregon sentencing legislation
Oregon Circuit Court Judge Michael Marcus, who operates this interesting site called Smart Sentencing, recently highlighted on a listserve a number of new Oregon sentencing laws. He permitted me to reprint his summaries (which enhance my coverage in this prior post on Oregon's Blakely fix), along with some explanatory commentary:
- SB 528 (available here) adopted a variation of the Kansas approach to post-Blakely enhanced sentencing, affording jury trial rights and bifurcation of offense- and offender- related sentencing issues (the former tried with guilt), dealing with cases on remand, and applying to dangerous offender as well as upward departure enhancement contexts. The statute is written broadly enough to encompass consecutive sentencing (Oregon's statute is in part particularly susceptible to a Blakely argument) and any other situation in which the constitution requires a jury trial right for a sentencing related fact. [We're working on appropriately revised jury trial waiver forms and guilty plea petitions, if anyone is interested]
- SB 914 (available here) extends state-wide an innovation in orders for pre-sentence investigations that our county initiated two years ago: such PSIs must now "provide an analysis of what disposition is most likely to reduce the offender's criminal conduct, explain why that disposition would have that effect and provide an assessment of the availability to the offender of any relevant programs or treatment in or out of custody"
- SB 919 (available here) requires our sentencing commission [the Oregon Criminal Justice Commission] to "conduct a study to determine whether it is possible to incorporate consideration of reducing criminal conduct and the crime rate into the commission's sentencing guidelines and, if it is possible, the means of doing so."
My view of the best (but remote) hope for the impact of Blakely is that it will give us an opportunity to re-examine the value and direction of the guidelines movement. I see the movement as essentially a well-intended but partially misdirected attempt by those who once supported the medical model of sentencing to recover from the realization later in the 20th century that rehabilitation goals are not achieved merely by proclaiming them (1962 Model Penal Code). Instead of accepting the challenge of outcome shortfalls, this movement retreated to less significant goals: normalizing sentencing and pretending that blue-ribbon sentencing commissions would actually moderate what it viewed as "punitivism" and the "mass incarceration" trend. The result is guidelines that have nothing intentionally to do with crime reduction (Virginia's are the only exception). The latter two bills represent an attempt to meet the challenge of empty promise with rigorous pursuit of responsible crime reduction.
For more on Judge Marcus's view of the post-Blakely, post-Booker world, check out his article entitled Blakely, Booker, and the Future of Sentencing to be soon appearing in this forthcoming issue of the Federal Sentencing Reporter.
Wednesday, July 13, 2005
Oregon's Blakely fix now law
As detailed in this article, in Oregon "Gov. Ted Kulongoski signed Senate Bill 528 last week, [in order to remedy] a flaw that the U.S. Supreme Court found last year in the criminal-sentencing guidelines of Oregon, several other states and the federal government." Background on this state legislative Blakely fix can be found in this prior post; the full text of the new law is available here. And this news, of course, only further contributes to my state of state Blakely excitement.
Sunday, July 10, 2005
States of Blakely excitement
I have now had a chance to read quickly all of the important Blakely opinions handed down by the Arizona Supreme Court on Friday (basics here). Though the particulars are of greatest interest to folks in Arizona, the rulings reveal yet again how much important Blakely work is being done in the state courts and reinforce my belief, expressed in this post, that the dynamic realities of Blakely in the states might truly be the most interesting sentencing story of the past year.
If you get as excited as I do about Blakely in the states, not to be missed is next month's 2005 Conference of the National Association of Sentencing Commissions, which is taking place in Washington DC on August 7-9. The Conference is fittingly entitled "The Continuing Evolution of Sentencing," and as detailed in this schedule, there will be lots of state Blakely discussion throughout the conference (as well as some federal Booker talk, too). You can register for this exciting conference via this link.
And, to help everyone catch up on the most recent developments, below I have linked to some recent state Blakely posts:
- Arizona Supreme Court clears its Blakely docket
- Judicial federalism: diverse state high court Blakely rulings
- Problems in Indiana with advisory fix
- Blakely and jury trial rights getting serious respect in NC
- Resources for those in the Black (California's Blakely decision)
- Big Blakely rulings from the ends of the Union (rulings from Maine and Hawaii)
Friday, July 08, 2005
Arizona Supreme Court clears its Blakely docket
I just got word from a very helpful reader that the Arizona Supreme Court decided a slew of sentencing cases today. All of the opinions can be accessed here, and I provide below the helpful summaries that were sent my way:
- State v. Henderson, No. CR-04-0442-PR (Ariz. July 08, 2005) (available here): "We granted review to consider whether a reviewing court should consider a claim based upon Blakely v. Washington, 542 U.S. 296 (2004), under a harmless error or a fundamental error standard when the defendant failed to raise the issue at trial. We hold that such claims should be reviewed for fundamental error."
- State v. Martinez, No. CR-04-0435-PR (Ariz. July 08, 2005) (available here): "We granted review in this case to resolve a single issue: Does the Sixth Amendment guarantee of a right to jury trial, as applied to Arizona's general felony sentencing scheme, require that a sentencing judge consider only those aggravating factors found by a jury beyond a reasonable doubt in determining whether to impose an aggravated sentence, or may the judge find and consider additional aggravating factors once a single aggravating factor has been found by the jury, is inherent in the jury's verdict, or has been admitted by the defendant?" ANSWER: A single one does it and then Katy-bar-the-door--------------- the Judge can find and rely on as many others as s/he sees fit.
- State v. Hon. Fell/Sanders, No. CV-04-0344-PR (Ariz. July 08, 2005) (available here): "Under Arizona law, if the death penalty is not imposed for first degree murder, the only other possible sentences are life with the possibility of release after a specified period ("life") or life with no possibility of eventual release ("natural life"). Ariz. Rev. Stat. ("A.R.S.") § 13-703(A) (Supp. 2004). We are called on in this case to decide (1) whether the Sixth Amendment requires that a jury find specific aggravating circumstances before the superior court may impose a natural life sentence and (2) whether the superior court can apply a law adopted in 2003 in deciding between a life and a natural life sentence for a first degree murder committed in 2000." ANSWER: "We therefore conclude that the Sixth Amendment does not require that a jury find an aggravating circumstance before a natural life sentence can be imposed." As to (2) above, NO.
- State v. Lamar, No. CR-01-0270-AP (Ariz. July 08, 2005) (available here): "The primary issue before us is whether reversible error occurred when a trial judge sentenced Christopher George Theodore Lamar to death under a procedure that violated Ring v. Arizona, 536 U.S. 584 (2002) (Ring II). In addition, we must determine whether the imposition of an aggravated sentence for Lamar's kidnapping conviction violated Blakely v. Washington, 124 S. Ct. 2531 (2004)." ANSWER: "Based on our review of the record, we cannot conclude that the Ring II violation constituted harmless error. We find no Blakely error present in Lamar's non-capital, aggravated sentence for kidnapping."
Tuesday, July 05, 2005
Judicial federalism: diverse state high court Blakely rulings
With all the state Blakely activity recently in North Carolina and elsewhere (background here and here, commentary here), I decided to celebrate our United States during the patriotic weekend by assembling here prior posts reporting on major state Blakely rulings. Dividing the rulings by whether Blakely was applied or dodged, we have:
STATE HIGH COURT RULINGS FINDING BLAKELY IMPACTING STATE SENTENCING
Oregon: Oregon Supreme Court decides Dilts (and ducks issues), reporting on Oregon v. Dilts (Or. Dec. 16, 2004).
STATE HIGH COURT RULINGS FINDING BLAKELY NOT IMPACTING STATE SENTENCING
New York: New York's highest court upholds state's felony offender law!, reporting on People v. Rivera (N.Y. June 9, 2005).
Tennessee: Tennessee dodges Blakely, so says divided state supreme court, reporting on Tennessee v. Gomez (Tenn. Apr. 15, 2005).
In addition to these 14 rulings, we should not forget that major Blakely cases are in the works in Michigan, New Jersey and Ohio. (A ruling from New Jersey's Supreme Court could be coming any day, while the Michigan and Ohio cases have not yet been argued in the state's highest court.)
Though the Blakely and Booker decisions are fascinating in their own right, the various ways these Supreme Court opinions are being understood and applied in the states is an amazing experience in what might be called judicial federalism. (Perhaps jurisprudential federalism might be a better term?)
Though I suspect that the stories of Booker in the federal system will continue to capture most of the headlines (and scholarly commentary), the dynamic realities of Blakely in the states might truly be the most interesting sentencing story of the past year. And, for that reason, I am pleased to be playing a role in future issues of the Federal Sentencing Reporter and the Ohio State Journal of Criminal Law that will be focused on Blakely in the states.
Problems in Indiana with advisory fix
This morning brings this interesting AP story from Indiana concerning the state's decision to respond legislatively to Blakely issues by converting its mandatory sentencing system into an advisory system. In the piece, Prof. Joel Schumm is quoted calling "the new law, which took effect in April, 'a pretty enormous setback' that undid decades of work toward making sentences fairer." And:
The new law could expose judges to extreme pressure to impose harsher sentences in line with the wishes of victims and their families, Schumm said. "To be honest with you, I think it could mean a lot more appeals and a lot longer sentences," he said.
The article also quotes lawyer Michael Ausbrook, of INCourts fame. The piece is headlined "Sentencing law may increase appeals; Change is called 'enormous setback.'" But for sentencing insiders who would understand the references, a more fitting title might be, "States should be wary of fixing Blakely with Booker."
Monday, July 04, 2005
Blakely and jury trial rights getting serious respect in NC
In suggested in this post that re-reading the Supreme Court's Blakely decision is a fine way to celebrate liberty on the Fourth of July. In the same vein, I can also recommend reviewing last week's Blakely work by the North Carolina Supreme Court through its Allen opinion and by the North Carolina legislature through its Blakely fix (detailed in this recent post). In stark contrast to what we have seen in the federal system and in a few states, all the post-Blakely developments in North Carolina give serious respect to jury trial rights and to Blakely's vision of those rights.
The Allen case is a fascinating read because the North Carolina Supreme Court justices are not debating whether Blakely should be found applicable to NC's sentencing guidelines system; Blakely's applicability to aggravating factors is treated almost as a given. Rather, the big deabte in Allen is whether Blakely violations should be deemed structural errors or subject to harmless error review. Stating boldly that "the imposition of a constitutional punishment is just as important to a criminal defendant and to society as is a constitutional determination of the defendant's guilt or innocence," the NC Supreme Court declares Blakely errors structural and expresses great concern about judges applying harmless error to "speculate" on issues never presented to juries.
Meanwhile, also giving great respect to Blakely and jury trial rights, North Carolina's now enacted Blakely fix bill, H822, that provides for jury determination of nearly all aggravating factors, including factors that are closely related to prior convictions. In other words, though the Blakely fix in NC does codify the Almendarez-Torres "prior conviction exception," it gives that exception a narrow reach. So, rather than adopt an "advisory guideline" dodge of Blakely rights, the North Carolina has simply provided for jury determination of aggravating factors (which is to occur as part of jury consideration of basic guilt/innocence, unless a judge bifurcates in the "interests of justice"). In addition, providing notice as well as jury trial rights, the NC Blakely fix requires the state to give 30 days written notice to the defense of intent to seek an aggravated range sentence.
Kudos to the state of North Carolina for honoring, through all its branches of government, the patriotic values of freedom, democracy and limits on government oppression that I believe are at the core of Blakely's holding.
Friday, July 01, 2005
Huge Blakely day in North Carolina
Of course, news of Justice O'Connor's retirement makes this a big day in DC. But, I have received word that, for Blakely fans, today is also a huge day in NC. That is because, apparently within the span of just 24 hours, North Carolina (1) had its Governor sign a Blakely fix bill, H822, that provides for jury determination of aggravating factors, and (2) had its state Supreme Court issue a set of major Blakely rulings, which apply Blakely to the state's sentencing system and hold that Blakely error is structural and cannot be harmless. Wow!
Though these events involve more details that I can summarize, I can provide the highlights and links. The major Blakely ruling from the North Carolina Supreme Court comes in State v. Allen, No. 485PA04 (N.C. July 1, 2005) (available here). And if you have not had enough Blakely fun in Allen's 76 pages, that Court also has some Blakely-related discussion in State v. Speight, No. 491PA04 (N.C. July 1, 2005) (available here) and in State v. Beck, No. 191PA04 (N.C. July 1, 2005) (available here).
Meanwhile, as detailed here, on Thursday North Carolina's Governor signed the state's Blakely fix bill, which is entitled "An Act to Amend State Law Regarding the Determination of Aggravating Factors in a Criminal Case to Conform with The United States Supreme Court Decision in Blakely V. Washington." Here is how the new law, which is available here, was described to me in an e-mail:
The bill, H822, calls for a jury determination of all aggravating factors. The determination takes place simultaneously with the jury verdict on guilt innocence of the basic offense, unless a judge bifurcates on the defendant's request "if the interests of justice require."
The State must give 30 days written notice to the defense of intent to seek an aggravated range sentence. "Statutory ags" need not be listed in the indictment, but ags that are not spelled out in the sentencing statute must be pled in the indictment.
Resources for those in the Black
The folks at California's First District Appellate Project have previously provided terrific resources here on Blakely, Booker and Shepard. I now see that the FDAP folks are starting to assemble materials to deal with California Supreme Court's big Blakely decision last week in Black (basics here, commentary here and here).
To begin, at this link you can access a memo authored by Jonathan Soglin entitled "Blakely, Booker, and Black. Now What?" Here's an account of the memo from its introduction:
This memorandum will provide quick suggestions as to how appellants can procedurally respond to Black in order to preserve Blakely claims. This memorandum will also provide some guidance for triage of cases in order to determine which cases may be best suited for certiorari petitions raising Blakely claims.
Thursday, June 30, 2005
Big Blakely rulings from the ends of the Union
State Blakely developments continue to unfold in fascinating ways nationwide, and yesterday brought state Supreme Court rulings of note from Maine and Hawaii. And the opinions from both ends of the union spotlight yet again the confusion and uncertainty that the US Supreme Court has created through its Booker spin on the Blakely decision.
From Maine, the big news, as summarized in this AP article, is that the state's Supreme Judicial Court concluded in two opinions that a Maine sentencing statute allowing increased sentences for the "most heinous crimes committed against a person" requires a jury determination of heinousness after Blakely. rendered yesterday a set of opinions interpreting Blakely. These opinions, State v. Schofield, 2005 ME 82 (Maine June 29, 2005) (available here), State v. Averill, 2005 ME 83 (Maine June 29, 2005) (available here), split the main Justices 4-3, with the dissenters maintaining that a determination of heinousness is not the type of fact traditionally submitted to a jury. (In a third ruling, State v. Miller, 2005 ME 84 (Maine June 29, 2005) (available here), the court ruled unanimously that there was no constitutional problem with judicial fact-finding in discretionary sentencing under distinct statutory provisions.)
From Hawaii, the big news is that the state's Supreme Court in Hawaii v. Maugaotega, 2005 WL 1525107 (Hawaii June 29, 2005) (available here, dissent here), held that "our approach to Hawaii's extended term sentencing scheme, as explicated in [prior rulings] Kaua and Rivera, is not at odds with United States v. Booker, inasmuch as (1) Booker's holding is limited to the federal sentencing guidelines, and (2) Hawaii's extended term sentencing structure is not mandatory." This is especially noteworthy because, as detailed in posts here and here, though the state Supreme Court has previously upheld constitutionality of Hawaii's extended term sentencing, a federal district court considering a habeas petition ruled last December that Hawaii's extended term sentencing scheme runs afoul of Apprendi and Blakely.
The decisions in Schofield and Maugaotega are both quite interesting and thoughtful, and they both reflect well on state high courts doing their best to make sense of the messy sentencing jurisprudence that the US Supreme Court has produced with Blakely and Booker.
Saturday, June 25, 2005
Lots of recent state Blakely action
Perhaps in honor of Blakely's birthday, the state courts have issued a lot of notable Blakely rulings of late. In addition to the California Supreme Court's big Blakely decision (basics here, commentary here and here), at least two other state Supreme Courts rendered notable Blakely decisions this week, as did a lot intermediate appellate courts in Ohio and Oregon and elsewhere.
The Minnesota Supreme Court issued only its second substantive Blakely decision in State v. Leake, No. A04-57 (Minn. Jun. 23, 2005) (available here), where the court confirmed that Blakely overruled an earlier state decision concerning the imposition of life without parole and also discussed the application of the prior-conviction exception. Meanwhile, the Indiana Supreme Court continued to explain and enhance its Smylie decision concerning Blakely's applicability in Indiana through Mask v. State, No. 49S02-0506-CR-290 (Ind. Jun. 23, 2005) (available here), and Wright v. State, No. 49S02-0506-CR-285 (Ind. Jun. 22, 2005) (available here).
Though I cannot keep up with all the intermediate appellate court state Blakely decisions (and thus encourage readers to spotlight any that appear especially notable), the ruling of an Arizona court in Newkirk v. Nothwehr, 2005 WL 1475392 (Ariz. App. Div. 1 Jun. 23, 2005), did catch my eye. In Newkirk, the defendant, challenging the denial of his request to allow a jury to find a prior conviction, built an interesting (but ultimately unsuccessful) argument for the right to a jury trial on provisions of the Arizona Constitution.
Friday, June 24, 2005
Thoughtful commentary on Black decision
UC Hastings law professor Vikram David Amar now has this terrific (and lengthy) commentary on FindLaw discussing the California Supreme Court's big Blakely decision earlier this week in Black (basics here, commentary here). I won't try to summarize Vik's many insights, but I will highlight his astute closing sentence:
It will be quite interesting to see whether the U.S. Supreme Court feels the need to accept review in yet another one of these cases, assuming Mr. Black files a petition for that Court's review.
Tuesday, June 21, 2005
Recapping a manic Monday
Perhaps providing a sign that we are in for another stunning summer, this week started off at a manic pace with sentencing action from all quarters on Monday. Because so much happened, I did not even have time to report that there were notable Booker decisions from the Fourth, Eighth and Eleventh Circuits on Monday. But because I do not think any of the circuit rulings were ground-breaking, these other Monday developments still merit the most attention:
SUPREME COURT DEVELOPMENTS AND COMMENTARY
- Important capital IAC and AEDPA rulings from SCOTUS
- SCOTUS refuses to take on Booker plain error
- Pondering the SCOTUS plain error dodge
- Not now or not ever on Booker plain error?
STATE BLAKELY DEVELOPMENTS AND COMMENTARY
- California Supreme Court dodges Blakely
- Booker strikes again (aka Back in Black)
- A great prior conviction test case
DISTRICT COURT BOOKER DEVELOPMENTS AND COMMENTARY
A great prior conviction test case
I am very glad to see Michael Ausbrook, who does a great job covering state Blakely stories, back in action at INCourts. And, in addition to this strong post on the California Supreme Court decision in Black, Michael highlights in this recent post a big Blakely case to be argued in the Indiana Supreme Court on Tuesday, Ryle v. State, which concerns the scope of the prior conviction exception.
I have spotlighted Ryle before in posts here and here because it seems like an especially good test case for the scope of the "prior conviction" exception. Ryle raises two issues which have divided lower courts: whether (1) juvenile adjudications and (2) being on probation at the time a crime is committed fit within the prior conviction exception. Michael's post provides considerable background on the juvenile adjudications issue, and also provides links to the parties' supplemental briefs. In addition, thanks to Michael, I can provide this link as the place to find on-line a webcast of the Ryle oral argument taking place on Tuesday morning in the Indiana Supreme Court.