Tuesday, March 21, 2006

Opposition to cert petition urging offense-offender Blakely distinction

As detailed in this post, in seeking cert on a state Blakely case, the Minnesota Attorney General is arguing to the Supreme Court in Minnesota v. Allen that Blakely should be "limited to facts related to the offense itself."  I have an affinity for this argument because, as I have explained in recent articles, I think the Sixth Amendment should be interpreted to distinguish between offense conduct and offender characteristics.  But, because this offense-offender distinction has never been embraced by SCOTUS, I recognize that this approach to Blakely would mark something of a shift in the Court's approach to these issues (although it would conceptually justify the otherwise questionable "prior conviction" exception).

The defendant's brief in opposition to cert in Allen (which can be downloaded below) makes a strong argument that an offense-offender approach to the Sixth Amendment would mark a significant change in the Court's jurisprudence.  Here is the opening of the effective brief in opposition in Allen:

The petition should be denied for at least three reasons: first, there is no split of lower-court authority for the Court to resolve on the issue on which petitioner seeks certiorari; second, the rule proposed by petitioner would run afoul of years of Supreme Court precedent; and third, this case is not the proper vehicle for addressing petitioner's concerns.

Download minnesota_v. allen BIO.pdf

Some related posts:

March 21, 2006 in Blakely in the States | Permalink | Comments (1) | TrackBack

Monday, March 20, 2006

Arizona Supreme Court addresses "admissions" for Apprendi/Blakely purposes

Proving yet again that state courts often give more attention and respect to Blakely issues than their federal counterparts, the Arizona Supreme Court late last week issued a thoughtful and thorough opinion on Blakely "admissions" in State v. Brown/McMullen, No. CV-05-0263-PR (Ariz. Mar. 16, 2006) (available here).  Though arising through a procedurally complicated setting, the issue and the court's unanimous ruling are clear:

The issue in this case is whether a defendant's statements during a plea colloquy relieve the State of its obligation under Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny to prove aggravating factors to a jury.  We conclude that the Sixth Amendment requires that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt," id. at 490, unless a defendant has knowingly, voluntarily, and intelligently waived his right to jury trial with respect to aggravating factors....

In short, we hold that the Sixth Amendment right to jury trial with respect to an aggravating factor necessary to impose a sentence remains inviolate unless the defendant's plea of guilty necessarily establishes the aggravating factor (because the facts admitted are elements of an offense to which the defendant has pled guilty) or the defendant has appropriately waived his right to jury trial with respect to these aggravating factors.

March 20, 2006 in Blakely in the States | Permalink | Comments (2) | TrackBack

Friday, March 17, 2006

Foster's impact on plea bargains and appeals

The Athens News has this terrific article discussing the Ohio Supreme Court's Foster decision, which found Blakely applicable to Ohio's structured sentencing system and adopted a Booker-type remedy.  The article does a particularly good job examining Foster's likely impact on plea bargaining and appellate review.

Some recent posts on Foster:

March 17, 2006 in Blakely in the States | Permalink | Comments (5) | TrackBack

Wednesday, March 15, 2006

Ohio AG response to reconsideration motion in Foster

State Blakely fans may recall that, after the Ohio Supreme Court in Foster found Blakely applicable to Ohio's structured sentencing system and adopted a Booker-type remedy (basics here), the Foster defendants and a supporting amicus filed for reconsideration in the Ohio Supreme Court claiming that the retroactive application of the remedy was unconstitutional.  (All the details are here.)  Today, the Ohio Attorney General filed a potent amicus brief with the Ohio Supreme Court explaining why it believes the motion for reconsideration is all washed up.  You can download this brief here:

Download foster_memorandum_amicus_curiae_opposing_motion_for_reconsideration.pdf

Recent posts on Foster:

March 15, 2006 in Blakely in the States | Permalink | Comments (1) | TrackBack

Friday, March 10, 2006

A local perspective on Foster

This short piece in the Marietta Times entitled "New sentencing rule felt locally" provides additional local perspective on the possible impact of the Ohio Supreme Court's recent Foster ruling, which found Blakely applicable to Ohio's structured sentencing system and adopted a Booker-type remedy.  Here is the article's lead: "Recent changes to Ohio's law, which call for the resentencing of hundreds of convicted felons, is expected to be a drag on local courts for some time, but lead to tougher penalties for some offenders."

Recent posts on Foster:

March 10, 2006 in Blakely in the States | Permalink | Comments (0) | TrackBack

Thursday, March 09, 2006

Minnesota urging SCOTUS to embrace offense-offender Blakely distinction

In writings since Blakely, I have argued that the Sixth Amendment ought to be interpreted to distinguish between offense conduct and offender characteristics.  In the article Conceptualizing Blakely, 17 Fed. Sent'g Rep. 89 (2004) (available here), I explain most fully why I think the text of the Constitution "connotes that the jury trial right attaches to all offense conduct for which the state seeks to impose criminal punishment, but also connotes that the jury trial right does not attach to any offender characteristics which the state may deem relevant to criminal punishment." 

I am now pleased to report that, in seeking cert on a state Blakely case, the Minnesota Attorney General is arguing to the Supreme Court that Blakely should be "limited to facts related to the offense itself."  Needless to say, I am convinced by the well-crafted argument in favor of an offense-offender distinction put forward by Minnesota in its cert petition in State v. Allen (which is available for download below).  But only time will tell if SCOTUS is interested in this case or the distinction.  Here are Minnesota's reasons for granting the petition in Allen:

This case presents this Court with an opportunity to answer an important question on which lower courts are split: Does Blakely only apply to facts about the crime that affect sentencing (offense-related facts, e.g., whether a gun was used in the crime)?  Or does it apply more broadly to include facts about the perpetrator (offender-related facts, e.g., whether the offender is amenable to probation)?

That this is an important question cannot be seriously disputed: the answer will have a direct and significant effect on numerous states, and will have an indirect effect on every legislative body considering sentencing reform.  Further, in reading Blakely expansively and rejecting any distinction between offender-related and offense-related facts, the Minnesota Supreme Court ignored both the plain language of the United States Constitution and Blakely's animating principle.

Download minn_cert_petition_in_allen.pdf

Some related posts:

March 9, 2006 in Blakely in the States | Permalink | Comments (6) | TrackBack

Wednesday, March 08, 2006

En banc Pennsylvania court upholds state sentencing scheme over Blakely challenge

Contributing to another yet another fascinating state Blakely day, the Superior Court of Pennsylvania, sitting en banc, has ruled that the state's guideline sentencing system is constitutionally sound.  Here is the opening of the majority's ruling in Commonwealth v. Kleinicke, No. 986 MDA 2003 (Sup. Ct. Pa. Mar. 8, 2006) (available for download below):

In this appeal, we consider whether Appellant's sentence violated the Supreme Court's pronouncements in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). After careful review, we conclude that the principles for which these cases stand were not implicated because 18 Pa.C.S. § 7508 merely increased the minimum sentence and not Appellant's maximum term of imprisonment.

The ruling generated two notable and interesting dissents.  When I get a chance to read all 71 pages, I hope to follow-up with commentary.  In the meantime, Keystone State lawyers (and any state Blakely fans) are highly encouraged to weigh in on Kleinicke.

Download pa_blakely_case_kleinicke.pdf

March 8, 2006 in Blakely in the States | Permalink | Comments (8) | TrackBack

Ohio defenders seek reconsideration of Foster's retroactive application

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

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

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

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

Download FosterReconsiderationMotion.pdf

Download FosterAmicusReconsiderationMemo.pdf

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

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

Download aclu_foster_blakelybooker_recon_amicus.pdf

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

Monday, March 06, 2006

Fascinating Foster follow-up on Ohio sentencing reforms

I continue to be fascinated by reactions to the Ohio Supreme Court's recent big Blakely decision in Foster.  Today the Cincinnati Enquirer, which had the best initial Foster coverage, has this fascinating follow-up article [Update: link fixed] that further examines the impact of Foster and the overall state of sentencing reform in Ohio.  Here are some snippets from an article that is today's must-read for serious students of sentencing reform:

Ohio lawmakers set ambitious goals 10 years ago when they rewrote the rules on how criminals are sentenced to prison....  A decade later, many of those reforms are gone or are in jeopardy....  The result is a system that's confusing and unpopular.  Judges complain that the system is needlessly complicated, offenders have challenged it in court, and prosecutors say it's soft on crime....

[J]udges praised the [Ohio] Supreme Court's [Foster] ruling last Monday, saying it will lead to tougher sentences.  Defense lawyers say it made a bad situation worse.  Differences aside, most agree the system remains flawed. "We've got to get back to fixing sentencing reform," state Rep. Bill Seitz, R-Green Township, said.  "But it's not something you start on Monday and finish on Tuesday."...

David Diroll helped draft the reforms 10 years ago as executive director of the Ohio Criminal Sentencing Commission.  He said the reforms took a hit from the Supreme Court but are still alive.  He said judges could consider the guidelines as "advisory," in the same way federal judges now use similar guidelines.... Diroll said such an approach in Ohio would preserve one of the fundamental goals of sentencing reform: consistency. "We just have to see whether the judges stay within the basic norms, the constraints, or whether it's open season," Diroll said.

Legislators say they will likely revisit sentencing reform soon.  They're just not sure how many changes they'll make.

Recent posts on Foster:

March 6, 2006 in Blakely in the States | Permalink | Comments (2) | TrackBack

Thursday, March 02, 2006

A sentencing judge's view on Foster

I noted here and here some prosecutor and defense reactions to the Ohio Supreme Court's recent big Blakely decision in Foster (basics here, commentary here and here and here).  For more telling perspectives, check out this article from the Youngstown Vindicator entitled "Law change pleases judge."  Here is a taste:

Judge R. Scott Krichbaum of Mahoning County Common Pleas Court says he's pleased that he no longer has to "jump through a flaming hoop" when giving criminals sentences that he deems appropriate... "I think it's about time," Judge Krichbaum said.  "It is finally a return to allowing judges to be judges, to allow us to execute our duties as elected individuals as opposed to the computerized, plasticized Stepford wives they've tried to make us into."...

"The courts and the Legislature were putting form over substance," says Mahoning County Prosecutor Paul J. Gains. If judges didn't make findings and record them in their journal entries, Gains said their sentences were at risk to be reversed in appeals court.  Now, "the courts will have more latitude when a defendant deserves more prison time," Gains said.

March 2, 2006 in Blakely in the States | Permalink | Comments (3) | TrackBack

A call for Blakely-ization in Ohio

In Foster, the Ohio Supreme Court's big Blakely decision earlier this week (basics here, commentary here and here and here), the court adopted a remedy that "Booker-ized" Ohio's sentencing laws by severing statutory requirements for enhanced sentences.  Interestingly, in this follow-up editorial, the Cincinnati Enquirer has called for a legislative response that would bring jury trial rights to Ohio sentencing:

The [Foster] court made it clear that a legislative remedy is needed.  In fact, justices came as close as they could to telling the General Assembly what to do without appearing to tell it what to do: "(T)he General Assembly may enact legislation to authorize juries to find beyond a reasonable doubt all facts essential to punishment in felony cases, but it has not yet done so," Lanzinger wrote.  Also, "it may well be that in the future the Ohio Criminal Sentencing Commission may recommend Blakely-compliant statutory modifications ..."

Get the hint, lawmakers?  The General Assembly should get busy and fix Ohio's felony sentencing laws now.

March 2, 2006 in Blakely in the States | Permalink | Comments (0) | TrackBack

Wednesday, March 01, 2006

A prosecutor's view on Foster

I discussed in this post why prosecutors are celebrating (and defense attorneys are lamenting) the Ohio Supreme Court's big Blakely decision in Foster (basics here, commentary here), which decided to "Booker-ize" Ohio's sentencing laws by severing statutory requirements for enhanced sentences.  To reinforce these realities, today I received (and got permission to post) a memorandum from a state county prosecutor's office discussing Foster.  The memo, which can be downloaded below, provides helpful background on the Foster case and why it (and the companion Mathis case) has prosecutors so happy.  Here are some telling snippets from the memo:

The [Ohio] Supreme Court concluded: (1) Judicial factfinding is not required before a prison term may be imposed within the basic ranges of R.C. 2929.14(A) based upon a jury verdict or admission of the defendant. Foster at 38. (2) Judicial factfinding is not required before imposition of consecutive prison terms. Id. (3) Judicial factfinding is not required before imposition of additional penalties for repeat violent offenders and major drug offenders. (4) Trial courts have full discretion to impose a prison term within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentence. Foster at 39....

[B]oth cases were unanimous decisions with Justice Resnick concurring in the paragraphs that are most pro-prosecution....  In my opinion, the background of those Supreme Court judges who formerly were common pleas court judges shines through the decision.

Good luck and unless the United States Supreme Court overrules Foster and Mathis our jobs and the jobs of our terrific secretaries will be easier.  Justice prevailed!

Download prosecutor_memo_on_ohio_sct_ruling.doc

March 1, 2006 in Blakely in the States | Permalink | Comments (13) | TrackBack

Tuesday, February 28, 2006

Coverage of Ohio Blakely ruling

Yesterday's AP story on the Ohio Supreme Court's big Blakely decision in Foster (basics here, commentary here) just barely covered the essentials.  But this morning, all of the local Ohio papers provide much fuller and more effective coverage.  This article in the Cincinnati Enquirer is especially effective, with background on Ohio law and the Foster ruling, lots of quote from key players, and this effective summary:

The decision technically is a victory for defendants who had argued that the guidelines were unfair because they allowed judges to impose sentences based on evidence not considered by a jury.  But by throwing out the old rules, the Supreme Court gave judges much more power to sentence criminals as they choose.  Prosecutors and defense attorneys say that's bad news for defendants.

Additional effective coverage appears in the Columbus Dispatch, the Cleveland Plain Dealer, and the Akron Beacon Journal.

February 28, 2006 in Blakely in the States | Permalink | Comments (0) | TrackBack

Monday, February 27, 2006

What is exactly the Blakely remedy in Ohio?

Upon a quick read, I was impressed with many parts of the Ohio Supreme Court's decision today in Foster, the state's big Blakely case (basics here), and not only because this blog got a nice plug in footnote 3 (details here).  Portions of the opinion were thoughtful, especially when the Court surveys the basics of Ohio law and the national post-Blakely landscape in the states.

However, when the Blakely rubber hits the Ohio sentencing road, Foster becomes far less appealing.  Some reasons for concern about Foster are already effectively detailed by commentors here, and for me the big head-scratcher is the exact remedy adopted by the Ohio Supreme Court.  Though it is clear that Foster did not adopt or endorse a remedy incorporating jury findings into Ohio's sentencing scheme, it is not at all clear exactly what remedy Foster did adopt or endorse.

The key remedy discussion of the Foster opinion, starting at page 36, carries the heading "Applying the Booker remedy."  However, the discussion that follows does not state or even suggest that the previously mandatory findings required by Ohio law are now advisory.  Likewise, the Foster opinion does not embrace or even suggest that appellate review for reasonableness (or for anything else) is now a component of Ohio's sentencing system.

A little more guidance emerges from the companion decision Mathis, and especially through this final paragraph:

Although after Foster, the trial court is no longer compelled to make findings and give reasons at the sentencing hearing since R.C. 2929.19(B)(2) has been excised, nevertheless, in exercising its discretion the court must carefully consider the statutes that apply to every felony case.  Those include R.C. 2929.11, which specifies the purposes of sentencing, and R.C. 2929.12, which provides guidance in considering factors relating to the seriousness of the offense and recidivism of the offender.  In addition, the sentencing court must be guided by statutes that are specific to the case itself.

I read this opaque paragraph as suggesting the mandates of Ohio's statutory sentencing system remains important now as an advisory system, although other parts of Mathis raise doubts about whether the Ohio sentencing system preserves any serious role for appellate review.

February 27, 2006 in Blakely in the States | Permalink | Comments (10) | TrackBack

Blogs as scholarship and a nice plug

Thanks to Howard, I see that this week's issue of The National Law Journal has this interesting article entitled "Blogging law profs assault ivory tower; Is it scholarship, or a cyber chit-chat?".  Needless to say, I think blogs (at least some of them) are a form of scholarship, but Texas Professor Kate Litvak apparently does not agree.  She is quoted as saying: "They have nothing to do with scholarship."

Joyfully, this morning I can respond to Kate's assertion by noting that the Ohio Supreme Court is apparently in the camp that thinks blogs have at least something to do with scholarship.  In its big Blakely decision today (basics here), the Ohio Supreme Court gives this blog this nice little plug in footnote 3:

See, also, Douglas A. Berman's legal blog, Sentencing Law and Policy, at http://sentencing.typepad.com for updates on Blakely and current source material on sentencing.

I cannot help but also note that traditional law review articles do not appear to be cited anywhere in the opinion.

UPDATE: Dan Solove has terrific additional coverage and commentary on the NLJ article here at Concurring Opinions.

February 27, 2006 in Blakely in the States | Permalink | Comments (8) | TrackBack

Ohio applies Blakely and the Booker remedy!

The Ohio Supreme Court finally released its (long-in-gestation) decisions concerning Blakely's applicability to Ohio's sentencing system.  I have previously highlighted that Ohio's sentencing laws and practices make the state a Blakely bellwether because Blakely's impact on Ohio's sentencing scheme could be extreme or extremely minor (background here and here).  It seems the Ohio Supreme Court went the extreme route.

The main decision, State v. Foster, 2006-Ohio-856 (Ohio Feb. 27, 2006) (available here), and a companion ruling, State v. Mathis, 2006-Ohio-855 (Ohio Feb. 27, 2006) (available here), have many facets, including what seems to be a ground-breaking ruling on consecutive sentencing.  This will justify much commentary in the days ahead (and I hope Ohio readers will get a running start in the comments).  Here is the Ohio Supreme Court's official syllabus in Foster (with cites omitted):

1. Because R.C. 2929.14(B) and (C) and 2929.19(B)(2) require judicial factfinding before imposition of a sentence greater than the maximum term authorized by a jury verdict or admission of the defendant, they are unconstitutional.

2. R.C. 2929.14(B) and (C) and 2929.19(B)(2) are capable of being severed.  After the severance, judicial factfinding is not required before a prison term can be imposed within the basic ranges of R.C. 2929.14(A) based upon a jury verdict or admission of the defendant.

3. Because R.C. 2929.14(E)(4) and 2929.41(A) 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, they are unconstitutional.

4. R.C. 2929.14(E)(4) and 2929.41(A) are capable of being severed. After the severance, judicial factfinding is not required before imposition of consecutive prison terms.

5. Because the specifications contained in R.C. 2929.14(D)(2)(b) and (D)(3)(b) require judicial factfinding before repeat violent offender and major drug offender penalty enhancements are imposed, they are unconstitutional.

6. R.C. 2929.14(D)(2)(b) and (D)(3)(b) are capable of being severed. After the severance, judicial factfinding is not required before imposition of additional penalties for repeat violent offender and major drug offender specifications.

7. Trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences.

UPDATEMore details about Ohio's sentencing system and the rulings in Foster and Mathis can be accessed here and here from the Ohio Supreme Court's website.

February 27, 2006 in Blakely in the States | Permalink | Comments (14) | TrackBack

Thursday, February 23, 2006

The latest must-read on Blakely/Booker

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

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

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

Wednesday, February 22, 2006

The realities of sentencing headlines

I have recently ranted about how much time and energy is spent on the death penalty when so many other consequential criminal justice issues merit more attention from public policy groups and the media.  But California developments yesterday, and the subsequent media coverage, perhaps highlight why I may always be tilting at windmills when I complain about our "legal culture of death."

As I explained here, the SCOTUS cert grant in Cunningham, a California Blakely case, will impact of thousands of sentences in California and could impact hundreds of thousands of sentences nationwide.  Even federal sentencing fans must keep a close eye on Cunningham, because the case could mark an important turning point in the Court's Sixth Amendment jurisprudence and it presents a key opportunity for the two new Justices to take stock of this jurisprudence. 

And yet, there has been almost no media coverage of the Cunningham cert grant.  Tellingly, the AP ran this story about the denial of cert in a capital case yesterday, but had no story on Cunningham that I have seen.  Tony Mauro's review of SCOTUS action in this article relegates the Cunningham cert grant to a brief mention (and even gets the name of the case wrong).  The Los Angeles Times today has this very brief account of Cunningham, but it provides no sense of the case's importance.

In contrast, California's struggles to kill death row defendant Michael Morales (basics here and here) has made headlines in nearly every paper in the country.  The Los Angeles Times today has this massive article about the stalled Morales execution (and this companion piece), the AP has had two reporters and major coverage on the case, the New York Times has this story, and nearly every California paper has a piece on the Morales case.  I suppose I just have to resign myself to the reality that, at least when it comes to ink, death will always be different.

February 22, 2006 in Blakely in the States, Death Penalty Reforms, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, February 18, 2006

Exploring possibilities in the SCOTUS state Blakely cases

In this post over at Criminal Appeal, Jonathan Soglin effectively explores possible action by the Supreme Court following its Friday conference on "the several pending California Blakely cases and a similar Tennessee case."   It seems Jonathan is predicting cert will be denied in these cases, although my money would be on a cert grant in at least one case with oral argument scheduled for next Term.  However, as I explained in this recent post, the more I think about the state Blakely cases from California and Tennessee (background here and here and here), the more unsure I am about what SCOTUS should or will do.

Some related prior posts:

February 18, 2006 in Blakely in the States, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, February 17, 2006

Mark your SCOTUS calenders

As detailed over at SCOTUSblog, the (new) Supreme Court is back in action with some orders about argued cases.  But we have to wait until Tuesday for news about what SCOTUS may do with the state Blakely cases conferenced today (speculations here). 

Also Wednesday of next week brings SCOTUS oral argument in two notable criminal cases:

Anyone want to guess whether Justice Alito — the first former federal prosecutor to serve as a Justice and the first prosecutor on the High Court since Earl Warren — will be an active questioner in these cases? I will make the bold prediction that Justice Alito will ask at least as many questions as Justice Thomas.

February 17, 2006 in Blakely in the States, Blakely in the Supreme Court, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack