Wednesday, August 01, 2007

Top-side briefs in Gall and Kimbrough

All the briefs on the petitioners/defendants' side of the two pending SCOTUS reasonableness cases, Gall v. United States and Kimbrough v. United States, were filed last week. I believe all of these briefs can be accessed at this page created on the New York Council of Defense Lawyers ("NYCDL") website.  (In addition, Paul Rashkind has assembled a lot of the briefs here, and I believe they will also appeal on this defender website eventually.)

I have only so far had a chance to read some of the briefs (in part because I was helping with this NYCDL brief in Gall).  There appears to be a lot of interesting and important post-Rita work being done in these briefs, and readers are encouraged to spotlight particular efforts and passages they consider especially notable.  I hope to find time after the bottom-side briefs are filed to comment on what the Justices might think about what they are being told.

UPDATE:  I have been told that briefs on the defender website are available here for Gall and here for Kimbrough.

August 1, 2007 in Blakely in the Supreme Court, Claiborne and Rita reasonableness case, Gall reasonableness case, Kimbrough reasonableness case, Rita reactions | Permalink | Comments (2) | TrackBack

Tuesday, May 29, 2007

A cold SCOTUS sentencing start to a hot summer

Memorial Day marks the unofficial start of summer, and it should be a hot one for sentencing fans with the still pending Claiborne and Rita cases, the upcoming Libby sentencing and congressional hearings all in the works.  But, as detailed here at SCOTUSblog, the Justices got back to work after the long weekend without much for sentencing fans to get excited about. 

The Justices issued only one opinion today (a labor law issue producing another 5-4 partisan split).  And the set of cert grants, except for a case with what seems like a little federal prisoner rights issue, have little of interest for criminal justice folks.

Significantly, the Justices denied cert today in Washington v. VanDelft, a state case that raised effectively whether Blakely applies to judicial factfinding supporting the imposition of consecutive rather than concurrent sentences.  I am inclined to guess that the Justices are a bit tired of Blakely issues as they sort through Claiborne and Rita.  (I am hoping, however, that the Justices are interested in judicial factfinding again when my supervised release case, discussed here and here, comes up for review in a few weeks.)

UPDATE:  Kent at Crime & Consequences here notes the VanDelft denial and also details that these sort of Blakely issues are up before the California Supreme COurt in the wake of Cunningham.

May 29, 2007 in Blakely in the Supreme Court | Permalink | Comments (2) | TrackBack

Wednesday, May 23, 2007

Will SCOTUS grant cert on Blakely consecutive sentencing issue?

The latest "Conference Call" column in Legal Times is entitled "Supreme Court Asked to Clear Up Sentencing Muddle."   The column highlights a case raising an important Blakely issues that the Justices are scheduled to consider this week.  Here are the highlights:

By setting constitutional limits on a judge's discretion to sentence, [Apprendi and Blakely] called into serious question the sentencing schemes of the federal government and of dozens of states.  In its private conference Thursday, the Supreme Court will consider whether to hear a case -- Washington v. VanDelft, No. 06-1081 -- that presents yet another wrinkle in the ever-evolving field of sentencing jurisprudence.

The question in VanDelft is whether the decision to impose consecutive rather than concurrent sentences is one that a judge can make, or whether, instead, it is a question that Apprendi and Blakely repose in the jury. 

The issue is a significant one because the imposition of consecutive rather than concurrent sentences can have a substantial effect on a defendant's overall time of incarceration....

The defendant in VanDelft, William VanDelft, received multiple convictions in state court for various attempts to abduct young boys for sex.  Two of those convictions were for attempted first-degree kidnapping; a third was for attempted second-degree kidnapping.  Washington state sentencing law stated that the sentences for first-degree kidnapping "shall be served consecutively to each other."  By contrast, sentences for second-degree kidnapping "shall be served concurrently."  Importantly, though, the law goes on to state that consecutive sentences can be imposed in exceptional circumstances....

The [Washington Supreme Court] noted that Washington sentencing law contained a "statutory presumption of concurrent sentencing" for VanDelft's second-degree kidnapping conviction, and that this "presumption" served as the relevant statutory maximum under Apprendi and Blakely.  The trial judge unconstitutionally exceeded this maximum, the court held, when he nevertheless imposed a consecutive sentence on VanDelft based on a separate finding that a concurrent sentence would be "too lenient."

May 23, 2007 in Blakely in the Supreme Court | Permalink | Comments (4) | TrackBack

Sunday, May 20, 2007

Continued pitch for cert on an important Blakely issue

As detailed in this post, I am part of a team seeking cert in Faulks v. US, a case from the Fourth Circuit concerning the procedures for revoking supervised release.  Our initial petition is here, and earlier this month the government filed its brief in opposition (BIO).  A few days ago, we filed our reply to the government's BIO.  These latest filings can be accessed here:

Download faulks_bio_from_government.pdf

Download final_faulks_reply.pdf

Though I am partial, I am genuinely convinced that the issues we have raised in Faulks need the Supreme Court's attention ASAP.  If the Justices in the Blakely five (or the Cunningham six) are genuinely committed to its articulated Sixth Amendment doctrines and principles, the judge-centered procedures employed in federal supervised release revocation proceedings ought to be cause for significant constitutional concern (especially in a case with extreme facts like Faulks). 

As has been well documented in the SCOTUSblog stats, SCOTUS needs to grant cert in a bunch of new cases to fill its fall argument calender.  And the Court has not taken up any new Blakely issues in a while (although, of course, Claiborne and Rita might address Sixth Amendment issues).  I am hopeful we have a real shot with Faulks.

May 20, 2007 in Blakely Commentary and News, Blakely in the Supreme Court, Reentry and community supervision, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, March 08, 2006

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

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

Sunday, February 12, 2006

A Valentine week sentencing wish list

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

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

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

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

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

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

February 12, 2006 in Blakely Commentary and News, Blakely in the States, Blakely in the Supreme Court, Booker and Fanfan Commentary, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, October 17, 2005

O Recuenco, Recuenco, wherefore art thou granted Recuenco?

The Supreme Court's cert. grant in Washington v. Recuenco has me in a Shakespearian mood as I try to figure out exactly why the Court decided its next foray into Apprendi-land should involve the intricate issue of whether Blakely errors can be subject to harmless-error analysis under Neder v. US, 527 U.S. 1 (1999) (available here) or instead qualify as structural errors under Sullivan v. Louisiana, 508 U.S. 275 (1993) (available here).  The easy answer to why Recuenco, I suppose, is that the lower courts have split on this question, with most courts applying harmless-error analysis, but a few state supreme courts concluding that Blakely errors are structural.  And, since Washington has taken the structural error approach (along with North Carolina and maybe New Jersey), one might also speculate that at least four Justices think the Washington Supreme Court is wrong on the merits and this issue needs to be cleaned up.

But the decision to grant cert in Recuenco is not that simple and the case has intricacies that may entail another complicated and opaque chapter in the Apprendi-Blakely saga.  First, as commentor DEJ notes here, this Blakely harmless/structural error issue could have a profound impact on the Booker plain error story (and some may even claim that Booker itself indirectly resolved this issue).  Second, Washington's statutory law and the exact posture of this case on appeal suggests that Recuenco is not the ideal vehicle for sorting through these harmless/structural error issues.  Third, given the current SCOTUS sentencing head-count on Apprendi-Blakely issues, as well as Justice Scalia's vocal advocacy against Sixth Amendment harmless-error analysis and the presence of new Justices, all bets are off concerning the ultimate outcome in Recuenco.

To close with more of the Bard, I am now worried that the disposition of Recuenco might come to resemble a SCOTUS tale along the lines of A Midsummer Night's Dream or Twelfth Night.

October 17, 2005 in Blakely in the Supreme Court | Permalink | Comments (7) | TrackBack

Thursday, September 08, 2005

Cert. pool filling up with Blakely cases

In posts here and here, I have explored whether John Roberts might impact the Supreme Court's agenda even more than its jurisprudence.  (Of course, I am focused on this issue in part because there are so many post-Blakely and post-Booker questions that I think merit the Supreme Court's attention and in part because I hope not to have to keep kvetching again and again about the Court's grants of cert. in so many death penalty cases.)

Providing a fitting follow-up to my recent reflections on the Supreme Court's likely next foray into the Blakely/Booker thicket, I see from fellow bloggers that the SCOTUS cert. pool is continuing to fill up with cases raising Blakely issues:

September 8, 2005 in Blakely in the Supreme Court | Permalink | Comments (0) | TrackBack

Tuesday, August 16, 2005

Pondering the next SCOTUS Blakely/Booker case

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

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

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

August 16, 2005 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

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:

July 10, 2005 in Blakely in the States, Blakely in the Supreme Court, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, June 16, 2005

SG asks for cert. in 6th Circuit plain error case

I received today, and provide for download below, a copy of the cert. petition that the Solicitor General has filed in US v. Barnett, the Sixth Circuit case that established a loose plain error standard which has led to many Booker remands in that circuit.  Here is the SG's assertion of reasons for granting the petition in Barnett:

The questions presented in this case concern the application of the plain-error rule, Fed. R. Crim. P. 52(b), to sentences imposed under a mandatory application of the Guidelines before this Court's decision in Booker. Essentially the same questions are presented in Rodriguez v. United States, No. 04-1148 (filed Feb. 23, 2005). The United States has filed a brief in Rodriguez acquiescing in certiorari in light of the multi-circuit conflict on the proper analysis of plain Booker error.

In this case, with respect to the third prong of the plain-error standard, the Sixth Circuit concluded that imposition of a sentence on the premise that the Guidelines are mandatory is presumptively prejudicial. The court did not require, as several other circuits do, that a defendant carry his burden to show prejudice by establishing a reasonable probability that the district court would have imposed a lower sentence if it had treated the Guidelines as advisory. With respect to the fourth prong, the court concluded that the fact that the law had changed since a defendant’s sentencing is sufficient to establish that the error affected the fairness, integrity, and public reputation of judicial proceedings, without any inquiry into whether the sentence that was imposed was itself unjust or unreasonable. Both of the Sixth Circuit's conclusions conflict with decisions of other courts of appeals, as detailed in the government’s brief in Rodriguez.

This case does not involve a constitutional sentencing error under the Booker merits holding, while Rodriguez does involve such an error. While some courts of appeals have drawn a distinction in the plain-error analysis to be applied to constitutional and nonconstitutional Booker error, the two scenarios involve fundamentally similar considerations, and this Court’s disposition of Rodriguez is thus likely to affect the correct resolution of this case. Accordingly, the petition for a writ of certiorari should be held pending the Court's disposition of Rodriguez.

Download barnett_sg_cert_petition.pdf

June 16, 2005 in Blakely in the Supreme Court, Booker and Fanfan Commentary, Booker in the Circuits, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, May 26, 2005

Follow-up SCOTUS filing on plain error

As detailed here, late last week the Solicitor General in Rodriguez v. US, the big plain error decision coming from the Eleventh Circuit, urged the Supreme Court to grant cert on the Booker plain error issue.  Rounding out the (non-)debate over whether SCOTUS should take up this issue, the lawyers representing Rodriguez today filed a cert reply brief in the Supreme Court.  That brief, which can be downloaded below, has this introduction:

The Government acknowledges the need for certiorari in this case, and offers three compelling reasons in support of that conclusion: (1) "There is a clear and deep multi-circuit conflict on the proper analysis of plain Booker error"; (2) the eleven circuits to address the issue "have adopted three different broad approaches, with further variations within each broad category"; and (3) "[s]ome of the differences among the courts of appeals illuminate basic disagreements about the proper approach to plain-error review" that will potentially recur in other contexts.

These critical points advanced by the Government merit elaboration beyond what the Government has said. First, although the circuit split at issue applies principally to cases in which the sentences were imposed before Booker, that category comprises massive numbers of cases; indeed, this Court alone has granted, vacated, and remanded more than 700 cases in light of Booker, almost all of which are likely to present plain-error issues.  Second, allowing vast differences in the treatment of similarly situated defendants based solely on the Circuit in which sentencing occurs is repugnant to the Sentencing Reform Act's central goal of eliminating such disparities.  Third, the divergent court of appeals decisions reflect basic and significant disagreements concerning plain-error analysis that are certain to recur in this and other contexts, including differences over what constitutes a "reasonable probability" of a different result and over whether a court of appeals may delegate the task of assessing that probability to the district court.

Download rodriguez_scotus_reply.pdf

May 26, 2005 in Blakely in the Supreme Court, Booker and Fanfan Commentary, Booker in the Circuits, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, May 23, 2005

A win for one capital defendant, an interesting DIG, and more Booker GVRs

As so well covered over at SCOTUSblog, part of this busy morning at the Supreme Court included a victory for a capital defendant in Deck v. Missouri (04-5293), where the Court ruled, 7-2, that "it is unconstitutional to require an individual, appearing before a jury for a possible death sentence, to be restrained by shackles and handcuffs throughout the proceeding."  The lengthy Deck opinion can now be accessed at this link.

And, in an interesting development in another capital case, the Court also dismissed Medellin v. Dretke (04-5928) as "improvidently granted."  Medellin, you will recall, was to address the impact of rulings by the World Court on respecting consular rights in context of US death penalty cases.  The lengthy Medellin opinion can now be accessed here.

And, continuing a Monday morning tradition, the Supreme Court's also issued some more Booker-inspired GVRs, although I count only 8 this morning on this order list.

May 23, 2005 in Blakely in the Supreme Court, Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Friday, May 13, 2005

Notable developments in Supreme Courts

With the help of the always helpful blogsphere, I see some notable Supreme Court developments on sentencing issues:

May 13, 2005 in Blakely in the States, Blakely in the Supreme Court, Booker and Fanfan Commentary, Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Wednesday, May 04, 2005

The waiting is the hardest part...

Over at SCOTUSblog, Tom Goldstein has this fascinating post previewing the Supreme Court's next term; he reports that for the 2005 Term, based on cert. grants this year, the "October sitting (8 arguments) and November sitting (12 arguments) are both full."  This would seem to mean that, unless expedited briefing is scheduled, the earliest that the Supreme Court could hear a Blakely or Booker case is December 2005, and thus we should not expect any clarifying Blakely or Booker decisions until probably at least March 2006.

I have railed in prior posts here and here about the Supreme Court's expenditure of much time and energy on death penalty cases when there are so many post-Blakely and post-Booker questions that are more pressing and of much greater national import.  But rather than continue to curse the SCOTUS darkness, let me try to light a certiorari candle by developing an annotated list, roughly in order of importance, of the Blakely/Booker issues that I think most urgently merit the Supreme Court's attention:

1.  The validity and scope of the "prior conviction" exception.  I spotlighted this issue soon after Blakely (consider this post last August), and the High Court's work in Shepard has only muddied these issues more. 

2.  The retroactive application of Apprendi, Blakely and BookerThough nearly all lower courts have ruled against retroactivity (with the exception of the Colorado decision which found Blakely retroactive to Apprendi), retroactivity issues will be litigated over and over and over again in the lower courts until the Supreme Court definitively rules.

3.  Booker pipelines issues such as plain error.  Unlike retroactivity issues, Booker pipelines issues are producing remarkable circuit splits.  But, also unlike retroactivity issues, Booker pipeline issues will eventually fade away even without a definitive Supreme Court ruling.  This is why I wonder, as I discussed here and here, if the High Court will consider these issues cert. worthy.

4.  Blakely's applicability to restitution and other non-prison sentences.  Taken to its logical extreme, Blakely's statement that "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment" could impact a lot more than sentencing within guideline systems.  Most lower courts are limiting Blakely's reach, but these are the same courts that sought (incorrectly) to limit Apprendi before Blakely came along.

I could go on, but I am already exhausted and I have not even mentioned the reconsideration of the Harris rule for mandatory minimums (which many believe cannot stand in the wake of Blakely).  Also, whether on direct appeal or through habeas actions, at some point SCOTUS will likely need to consider whether and how Blakely applies to some unique state guidelines systems.  And, not to be overlooked, if Congress were to pass a constitutionally questionable Booker fix (such as the proposed HR 1528), a whole new set of constitutional questions in need of urgent resolution could emerge.

May 4, 2005 in Almendarez-Torres and the prior conviction exception, Apprendi / Blakely Retroactivity , Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, April 26, 2005

SCOTUS debates (in footnotes) Blakely/Booker pipeline issue

Though the two criminal law decisions decided today by the Supreme Court are surely noteworthy for various other reasons (basics here and here), a bit of sparing in the footnotes of Pasquantino v. US about how to handle a Blakely claim has my attention.  Here is the final footnote of Justice Thomas' opinion for the majority of the Court, which affirmed the defendants' convictions in Pasquantino

Petitioners argue in a footnote that their sentences should be vacated in light of Blakely v. Washington, 542 U. S. ___ (2004).  Brief for Petitioners 26, n. 29.  Petitioners did not raise this claim before the Court of Appeals or in their petition for certiorari.  We therefore decline to address it. See, e.g., Lopez v. Davis, 531 U. S. 230, 244, n. 6 (2001) (declining to address "matter . . . not raised or decided below, or presented in the petition for certiorari"); Whitfield v. United States, 543 U. S. ___ (2005) (affirming federal convictions despite the imposition of sentence enhancements, see Brief for Petitioners therein, O. T. 2004, No. 03–1293, etc., p. 7, n. 6).

Here is the footnote retort on this issue in Justice Ginsburg's dissent:

I note that petitioners' sentences were enhanced on the basis of judicial factfindings, in violation of the Sixth Amendment. See United States v. Booker, 543 U. S. ___, ___ (2005) (STEVENS, J., for the Court) (slip op., at 5-9); see also Blakely v. Washington, 542 U. S. ___ (2004).  Despite the Court's affirmance of their convictions, therefore, the petitioners may be entitled to resentencing. See Booker, 543 U. S., at ___, ___ (BREYER, J., for the Court) (slip op., at 25-26). The Court declines to address the defendants' plea for resentencing, stating that "[p]etitioners did not raise this claim before the Court of Appeals or in their petition for certiorari." See ante, at 21, n. 14. This omission was no fault of the defendants, however, as the petition in this case was filed and granted well before the Court decided Blakely.  Petitioners thus raised Blakely at the earliest possible point: in their merits briefing.  The rule that we do not consider issues not raised in the petition is prudential, not jurisdictional, see Izumi Seimitsu Kogyo Kabushiki Kaisha v. U. S. Philips Corp., 510 U. S. 27, 32-33 (1993) (per curiam), and a remand on the Blakely-Booker question would neither prejudice the Government nor require this Court to delve into complex issues not passed on below.

I guess we should not be surprised to find that the Supreme Court is split on this "pipeline" issue.  Also, these comments provide some interesting tea leaves for lower courts to read concerning (1) how to handle various Blakely-Booker pipeline issues, and (2) whether the Supreme Court may ever grant cert on questions like plain error or other pipeline concerns (prior musing on this issue are here).

April 26, 2005 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, April 25, 2005

The same ole story from SCOTUS

As we all now know, Monday morning with the Supreme Court in session means more Booker-inspired GVRs.  This morning I count three dozen such GVRs on this order list, which emboldens me to restate my prediction in this post that we could have over 1000 such orders before this Term is finished.  (Previous GVRs can be tracked down through this post.)

In addition, as reported in this post from SCOTUSblog, the Supreme Court continued today its preoccupation (fetishism?) with capital sentencing procedures through a cert grant in Oregon v. Guzek (docket 04-928), which concerns "a convicted individual's attempt to bring into a death sentencing hearing evidence that would cast doubt on the conviction."  As well explained at  SCOTUSblog, Guzek "seeks clarification of the Supreme Court's 1988 ruling in Franklin v. Lynaugh" and also "could have an impact on the coming sentencing hearing of admitted terrorist Zacarias Moussaoui."

Though Guzek seems like a cert-worthy case, this grant reinforces my recent observations in this post about how much time and energy the Supreme Court is spending on death penalty litigation these days.  (I am growing fond of labeling these developments a "legal culture of death" at the Supreme Court.)  I believe Guzek is the second capital cases in which cert has been granted for the 2005 Term, even though there are (in my view) many post-Blakely and post-Booker legal questions concerning non-capital sentencing procedures that are far more pressing and of much greater national import.

Meanwhile, as reported here by CrimProf and in fuller posts at SCOTUSblog here and here, the Supreme Court is hearing arguments today on two (complicated) non-capital criminal cases which both have issues that could impact sentencing law and practice.  As the Supreme Court term winds down over the next two months, I will be watching closely not only whether we get cert grants on any Blakely and Booker issues for next Term, but also whether some of the coming decisions this Term have any important or notable dicta that might impact post-Blakely and post-Booker litigation in lower courts.

UPDATE: This AP account of today's SCOTUS argument in Halbert v. Michigan suggests that sentencing is a big part of the case's back-story.  The Halbert case will thus be high on my watch list as the Term winds down.

April 25, 2005 in Blakely in the Supreme Court, Booker and Fanfan Commentary, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, April 18, 2005

The Booker GVRs are back

After a two week break, the Supreme Court is back in business today.  And, as has become its custom over the last three months, Mondays at the High Court now start with an order list that includes a bunch of Booker-inspired GVRs.  This morning I count nearly 30 such GVRs, and now I am thinking we might have over 1000 such orders before this term is finished.  (Previous GVRs can be tracked down through this post.)

Also, as reported here by SCOTUSblog, the Supreme Court today "refused to reopen the 1998 decision in Almendarez-Torres [as it] denied a motion to file a petition for rehearing" in that case.  (That petition was previously discussed here.)  Thus, it appears some other case will be needed to satisy Justice Thomas' desire for the to "consider Almendarez-Torres' continuing viability."

April 18, 2005 in Blakely in the Supreme Court, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, March 22, 2005

Pondering the state Blakely pipeline

Picking up on my post here about all the Booker-inspired GVRs, Michael Ausbrook at INCourts notes here that he can only find one Blakely-inspired GVR (the Dilts case from Oregon).  That interesting discovery has me thinking more broadly about the pace and pattern of sentencing litigation in the state courts and about when and how the Supreme Court will consider state Blakely issues on the merits .

First, it is interesting that, nearly nine months since Blakely, less than half of the states struggling with major Blakely issues have had their state supreme courts weigh in.  My own notes show major Blakely rulings from state supreme courts only in Arizona (Brown), Indiana (Smylie), Minnesota (Shattuck), and Oregon (Dilts), and these rulings often punted as many issues as they resolved.   Meanwhile, we are still awaiting serious high court Blakely input in California, Colorado, New Jersey, New Mexico, North Carolina, Ohio and Tennessee.

Second, it bears noting that there are some broad and common Blakely issues of concern to many states (e.g., Blakely's applicability to consecutive sentencing), and a number of narrow and unique Blakely issues of concern only to particular states (e.g., Blakely's applicability to Ohio's "worst form of the offense" enhancement).  Also, there are a range of Blakely remedy/pipeline issues that implicate constitutional provisions like double jeopardy and due process.  Whether, when and how the Supreme Court will take up these "second-generation" Blakely issues from the states should be an interesting story for many years to come.

March 22, 2005 in Blakely Commentary and News, Blakely in the States, Blakely in the Supreme Court, Booker and Fanfan Commentary, State Sentencing Guidelines | Permalink | Comments (10) | TrackBack

Monday, March 07, 2005

Summarizing Shepard (and seeking state insights)

The Supreme Court's opaque work today in Shepard v. US (basics here) is hard to fully comprehend (consider this comment).  Consequently, let me spotlight again the basic summary of the case here from the SCOTUSblog and summarize below my recent Shepard posts:

I am making such a big deal over Shepard and the possible demise of the Almendarez-Torres "prior conviction exception" in part because many states — including many without guideline structures — have sentencing laws (such as three-strikes laws) that rely on judges finding prior conviction facts.  In the wake of Booker and its "advisory dodge," the Almendarez-Torres "prior conviction exception" may seem like a very minor issue for the federal system.  But because every state, I believe, has some sort of mandatory recidivist or three-strikes law, the overall impact of the demise of the Almendarez-Torres could be, dare I say, perhaps even greater than Blakely.

Of course, if the Harris mandatory minimum exception to the Jones-Apprendi-Blakely rule remains standing (a big IF), some judicial fact-finding at sentencing will still be permissible even if (when?) the Almendarez-Torres "prior conviction exception" is eliminated.  But my own sense of state sentence laws is that the demise of the Almendarez-Torres could be hugely important.  But I may lack any real perspective, and thus I would be grateful if those folks most familiar with state sentencing systems might use the comments to explain the possible impact if the Almendarez-Torres "prior conviction exception" was formally eliminated.

UPDATE: Jonathan Soglin at Criminal Appeal here contributes a number of important insights about Shepard and also details its likely immediate impact on People v. McGee, no. S123474, a California Supreme Court case concerning the applications of California's Three Strikes Law.

March 7, 2005 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, State Sentencing Guidelines | Permalink | Comments (3) | TrackBack

Still more SCOTUS GVRs

In what is becoming a weekly tradition, this morning we get a bunch more Booker-inspired GVRs from the Supreme Court (previous examples are here and here and here).  The SCOTUS order with this morning's 20-odd Booker-remanded cases is available at this link (where one can also see that we now also have some Roper-inspired GVRs).

March 7, 2005 in Blakely in the Supreme Court, Booker and Fanfan Commentary, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, January 12, 2005

SCOTUS speaks: Booker and Fanfan have arrived!!

Not a moment too soon, we finally have an opinion in Booker and Fanfan!! All I know is that it is long and messy, but it appears Blakely applies to the federal guidelines, with Justices Stevens and Breyer both writing parts of the Court's opinion.  More soon!

UPDATE: Lyle Denniston at SCOTUSblog has key language from the opinions here, and I hope to have links to the full opinions within the hour.

Here are the links: As promised, here is the link to Justice Stevens' partial opinion for the Court, here is the link to Justice Breyer's partial opinion for the Court, here is the link to a partial dissent by Justice Scalia, here is the link to Justice Thomas' partial dissent, here is the link to Justice Breyers' partial dissent, and here is the link to Justice Stevens' partial dissent.  And here is a link to the whole messy ball of wax, including the 6 page syllabus.

I will need some time to digest all 6 opinions (6 opinions!!), which run 118 total pages (118 pages!!).  But I should have lots and lots of commentary to follow throughout the day.  In the meantime, I hope readers will use the comments to share their views on whether the opinion was worth the wait.

The essence of the holdings: From Stevens' opinion:

We hold that both courts correctly concluded that the Sixth Amendment as construed in Blakely does apply to the Sentencing Guidelines. In a separate opinion authored by JUSTICE BREYER, the Court concludes that in light of this holding, two provisions of the Sentencing Reform Act of 1984 (SRA) that have the effect of making the Guidelines mandatory must be invalidated in order to allow the statute to operate in a manner consistent with congressional intent.

January 12, 2005 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (41) | TrackBack

Lucky seven?

By my count, today marks the seventh time this term the Supreme Court has plans to release opinions in argued cases.  Will seven be the lucky number for Booker and Fanfan?  Of course, yesterday I made this bold prediction that we will see Roper and not Booker and Fanfan today.  Given my prediction track-record, this means anything else is likely to happen.

In any event, you may be now know the pre-Booker drill.  Let me list here some of the recent pre-Booker "gearing up" posts:

Also, additional posts of note and background materials on Blakely and Booker and Fanfan are at my Blakely Basics page, and still more information can be accessed through the Booker/Fanfan and Blakely page links in the right side-bar.

January 12, 2005 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Tuesday, January 11, 2005

A bold (and silly?) prediction

As noted previously, tomorrow the Supreme Court will hand down one or more decisions, but then, after tomorrow, the following Tuesday or Wednesday (Jan. 18 or 19) seem to be the next earliest possible decision days.  Just for fun, I am going to predict now that tomorrow we won't see Booker and Fanfan, but we will see a decision in Roper v. Simmons, the juvenile death penalty case that has both sentencing and international law significance (background here and here).

I make this prediction in part because, as noted by SCOTUSBlog and Law Dork, Justices Scalia and Breyer have plans later this week to have "A Conversation on the Relevance of Foreign Law for American Constitutional Adjudication" at American University.  (All the details on the event and a link for live viewing are here.)  I think the Justices' conversation would be enhanced by the release of Roper before the event.  (This is, of course, just silly speculation of the kind that used to get me in trouble with this (now defunct?) blog.)

That all said, applying Murphy's Law, I should probably predict we will get Booker and Fanfan tomorrow because a decision tomorrow could put a big wrinkle in the workshop I am scheduled to do later this week at the UNC School of Law.

January 11, 2005 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Death Penalty Reforms, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Another SCOTUS case to deal with (collateral) Blakely concerns?

A crackerjack reader has brought to my attention the fact that, in the Supreme Court's grant of cert. last week in Halbert v. Michigan, 03-10198 (available here), the second question presented could be of significance in the post-Blakely world.  Here is the question in full form:

Is Petitioner entitled to resentencing, where counsel failed to render effective assistance by not objecting to improper scoring under Michigan's sentencing guidelines which resulted in Petitioner receiving a considerably longer sentence?

Though, obviously, this question does not directly confront Blakely issues, any further elaboration on the meaning and application of ineffective assistance in the context of (noncapital) sentencing representation could be of great import in the wake of Blakely.  The Supreme Court's discussion of these matters in Glover v United States, 531 US 198 (2001), set out only the most basic of considerations.

(And yet, as suggested by Jonathan Soglin at Criminal Appeal in this post, it is not clear that the ineffectiveness question in Halbert v. Michigan is of real concern to the High Court.  As detailed by SCOTUSblog in this post, the Court clearly took Halbert to address "the constitutionality of a Michigan procedure that denies a free lawyer to aid an individual who has pleaded guilty but who wants to seek a discretionary appeal in a higher court."   The Court sought to confront that issue earlier this Term in Kowalski v. Judicial Circuit Court (03-407), but a standing problem got in its way.)

January 11, 2005 in Blakely Commentary and News, Blakely in the Supreme Court, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

More waiting: still no Booker and Fanfan

According to Lyle Denniston at SCOTUS Blog here, today is another no-show for Booker and Fanfan.  We may have only one more day to wait, since opinions are also due to be released tomorrow, but now I am starting to think the Supreme Court is enjoying teasing all of us.

January 11, 2005 in Blakely in the Supreme Court | Permalink | Comments (30) | TrackBack

Predicting the unpredictable

Despite my prior false predictions of the coming of Booker and Fanfan, there is now some historical precedent for thinking the decision is imminent.  The last major challenge to the federal guidelines' constitutionality in Mistretta v. US was argued on October 5, 1988 and decided January 18, 1989.  So, even if we do not get Booker and Fanfan today or tomorrow, history suggests the decision should be coming soon.

Rather than make bold predictions, I will simply note that, in addition to Booker and Fanfan, it is possible we will see this week opinions in Roper v. Simmons, the juvenile death penalty case, and in Shepard v. US, the criminal history case.  Then again, it is also possible we are due for more waiting.

While we wait, here is a list of a few recent "gearing up" posts:

Additonal posts of note and other background materials on Blakely and Booker and Fanfan can also be found on my Blakely Basics page.  And a wealth of additional information can be accessed through the various Booker/Fanfan and Blakely page links in the right side-bar.

January 11, 2005 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Death Penalty Reforms, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, January 10, 2005

Is it finally the big week?

I now have heard from three sources that the Supreme Court has announced that it will be issuing decisions on both Tuesday and Wednesday of this week.  Thus, it is time, yet again, to strike up the (false?) alarm for the possible arrival of Booker and Fanfan.  (I realize my predictions are now even less credible than the wolf-crying boy's, but that won't stop me from saying, yet again, that we may be only days away from the start of the next era of sentencing reform.)

I have already done many, many posts anticipating Booker/Fanfan posts, some of which can be found here and here.  However, since the last possible Booker sighting, a number of more recent posts have spotlight relevant recent developments.  Thus, as we gear up yet again, here are a few more posts I am planning to review tonight:

In addition, I think everyone contemplating the future of federal sentencing law and policy should give considerable attention to (1) The Sentencing Project's most recent 3-page report entitled "The Federal Prison Population: A Statistical Analysis," and (2) the important comments by Republican Senators about emphasizing rehabilitation coming from the Gonzales hearing last week.

January 10, 2005 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, January 04, 2005

Justice Breyer on the Blakely front lines (sort of)

With thanks to How Appealing for the tip, I found this AP article reporting on Justice Breyer's recent experience in Massachusetts state court with jury duty amusing.  Though Justice Breyer apparently did not get seated on a jury, he was quoted as saying: "It proves that everyone can participate, and in a democracy that is important."  Given Professor Bill Stuntz's interesting suggestion that the Blakely decision seems to be trying to make the criminal justice system more democratic (discussed here), perhaps this quote is a sign that Justice Breyer is now on the Blakely bandwagon.

January 4, 2005 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Who Sentences? | Permalink | Comments (0) | TrackBack

Could Booker/Fanfan impact the Chief Justice sweepstakes?

The blogsphere continues to buzz about possible replacements for Chief Justice Rehnquist, and of late the talk has been a lot about Justice Thomas.  Some of the interesting posts are collected  at SCOTUSblog here and this week's Legal Affairs Debate Club asks "Should Clarence Thomas be Chief Justice?"

Of course, consistent with my "Blakely gets no respect" commentary (details here and here), none of this talk notes Justice Thomas' interesting role and opinions in the Blakely line of precedents.  Justice Thomas became the key fifth vote in Apprendi (after a contrary vote two years earlier in Almendarez-Torres), and his opinions in both Apprendi and for the dissenters in Harris are remarkable in many ways.  If, as some have speculated, Justice Thomas is writing the opinion in Booker and Fanfan to strike down the federal sentencing guidelines, it is fun to speculate how such a headline-making ruling might impact the public and political dialogues about the next Chief.

January 4, 2005 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, December 28, 2004

The WSJ on the federal Blakely mess

In my Sentencing Year in Review, I praised the media's recent coverage of sentencing issues, and the Fourth Estate is doing me especially proud this week.  To go with a powerful NY Times editorial and great Wash. Post pardon coverage, this morning brings another great article from Laurie Cohen at the Wall Street Journal.  (A collection of the WSJ articles covering the federal sentencing system could now make a great sentencing reader, with just some of the prior great articles here and here and here and here.)

Today's front-page WSJ piece (available here by subscription) is entitled "Double Standard -- In Wake of Ruling, Disarray Plagues Federal Sentencing" and documents the nationwide mess made by Blakely:

Disarray has enveloped the federal court system for the past six months since a Supreme Court ruling hinted that the guidelines governing federal sentences may be unconstitutional. As federal judges wait, and wait some more, for the divided high court to deliver a final verdict, they have come up with a myriad of ways to sentence defendants.

The article does an especially effective job detailing the Blakely story from a variety of angles by quoting many federal judges and litigants from various parts of the country.  Here's one example of the insightful anecdotes in the piece:

In Sioux Falls, S.D., Chief Judge Lawrence L. Piersol says he is asking juries to find drug quantities and that is "simple for them." But financial fraud cases are another matter. Judge John C. Coughenour, chief judge of the Western District of Washington, yesterday completed an eight-week trial involving 87 counts of tax evasion and other fraud. The jurors came back with guilty verdicts against six defendants. "It's not going to be a simple task for a jury to conclude how much the tax loss was," says Judge Coughenour.

P1ac335a_sentence12272004204708The article also provides thoughtful review of the different views of Blakely waivers, and it has a cool looking map detailing the current circuit variations on what Blakely means for the federal sentencing system while we "wait, and wait some more, for the divided high court to deliver a final verdict."  (I have detailed the particulars of the circuit variation in this post.) 

The article not only details the mess that is federal sentencing now, but it highlights for me how hard the "clean-up" is going to be for lower federal courts next year no matter what the Supreme Court says in Booker and Fanfan.  And I am already looking forward to the WSJ's coverage of that future story.

December 28, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Wednesday, December 22, 2004

New resources from The Sentencing Project

I just noticed that The Sentencing Project, a non-profit organization which does terrific research and advocacy work on a range of criminal justice issues, has on its website new resources on Blakely and on the scope of imprisonment.

On a page appropriately titled "Awaiting the Supreme Court," Executive Director Malcolm Young provides extensive background on Blakely and the pending Booker and Fanfan.  This discussion of the cases also effectively integrates (and links to) other important recent sentencing reform developments.

And a document entitled "New Prison Figures: Rising Population Despite Falling Crime Rates" provides an effective and compelling summary of the latest prison data released by the Bureau of Justice Statistics last month (discussed here).  The document also discusses nationwide sentencing developments and has an amazing final graph of different countries' incarcertaion rates (which shows that the US rate of incarceration is more than 5 times China's, more than 10 times Japan's and more than 20 times India's rate of incarceration).

December 22, 2004 in Blakely Commentary and News, Blakely in Legislatures, Blakely in the Supreme Court, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (3) | TrackBack

Monday, December 13, 2004

Sentencing (and immigration) is hard work

While contemplating another month of contemplating what the Supreme Court is contemplating in Booker and Fanfan, I thought it worth noting a pattern in the Court's work this fall.  Interestingly, the Justices have now decided all the cases heard in October except its two big sentencing cases (Booker/Fanfan on the federal guidelines; Roper on the juvenile death penalty) and a few immigration cases (basic case details here and here from SCOTUSblog). 

Thus, it seems the High Court is most divided, or just particularly slow, on matters of sentencing and immigration (though I should note that the Court's very first opinion this term, Leocal v. Ashcroft, involved the intersection of immigration and sentencing).  This pattern also suggests, I suppose, that whichever Justices are most likely to be writing on immigration issues are least likely to be authoring the sentencing opinions.

TealeafreadingCREDITS: This latest exhibition in obsessive tasseography owes thanks to Howard Bashman for the case information, and also for his speculations here about who may be writing Booker and Fanfan based on which Justices have yet to author a majority opinion from the Supreme Court's October 2004 argument session.

December 13, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Death Penalty Reforms, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

My waiting wish-list

With no decision today, I did not get my wish of an opinion in Booker and Fanfan as a Hanukkah present.  And, unless the Supreme Court surprises us with extra opinions this month, it also seems I wasted my time writing to Santa to ask for a Booker and Fanfan opinion.  But even though it appears we now must all wait until January for a sentencing present from the Supreme Court, other institutions can keep me in a holiday mood by working on this waiting wish-list of mine:

1.  I wish the US Sentencing Commission supplements the fascinating data it has collected here about post-Blakely federal case processing, which could provide a fuller picture of the state of federal sentencing now.

2.  I wish a few state Supreme Courts resolve pending Blakely appeals, in order to further define and refine the many post-Blakely legal questions that need to be resolved (see some background here).  My own perspectives on Blakely (reflected in articles here and here) have been greatly influenced by state court rulings, and the Supreme Court apparently needs all the help it can get.

3.  I wish a few state sentencing commissions (or even the offices of state Attorneys General) provide additional data and analysis on how Blakely is impacting state criminal justice systems.  We get snippets from briefs and news stories, but nothing compares to the systematic analysis that can be done by an effective sentencing commission (as Minnesota's commission has shown).

4. I wish the ABA and the ALI and the Constitution Project and all the other important groups working on sentencing reform can use this extra Booker-free time to gear up for what is likely to be a hectic January.  I was rooting for a decision from SCOTUS now so we might all have a few weeks to mentally process the decision before congressional re-writing of federal sentencing was realistically feasible.  Now I fear we could possibly get a Supreme Court decision and then new federal sentencing legislation in rushed succession in January.

5.  I wish the powers that be in college football could figure out how to create a playoff system.  This mysterious blog sensibly suggests here that I watch a lot of football to keep in good cheer and keep my mind off Booker and Fanfan.  But what really keeps me from being in good cheer is knowing that USSC Chair Judge Hinojosa's beloved Texas Longhorns will not get a chance to prove on the field that they might actually be the best team in college football.  I suppose if the Longhorns take their frustrations out on Michigan in the Rose Bowl, that should suffice for this Buckeye.

December 13, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack

No news is big news

I am genuinely amazed that the Supreme Court has now issued 11 opinions this term, and yet we still have not seen a ruling in Booker and Fanfan.  Perhaps it really is all my fault.

I have previously highlighted here and here and here how many different persons and institutions are eager for a decision in Booker and Fanfan — including, of course, both other branches of the federal government.  Recall that, way back in July, the US Congress and the Acting Solicitor General expressed in remarkable terms how critical it was for the Court to promptly rule on the constitutionality of the procedures used in applying the federal sentencing guidelines.  Moreover, as I noted before, last year the Court in McConnell v. Federal Election Commission was able to resolve the constitutionality of the new federal campaign finance laws — in opinions totaling 298 written pages!! — before heading home for the holidays.

I must now speculate that Chief Justice Rehnquist's illness is playing a role in the delay.  Notably, as detailed here, the Chief did not participate in some of the cases decided today.  I presume that reveals that the Chief's health is impacting his ability to be a fully functioning member of Court.  Though I doubt that CJ Rehnquist is a swing vote on whether Blakely applies to the federal guidelines, he could be a swing vote on the second severability question.  Moreover, CJ Rehnquist's absence from the Court may mean that there is not a chief administrator pushing other Justices to complete their opinions.  [UPDATE: Howard Bashman has news here on the impact of the Chief's health, as well as speculations here about who may be writing Booker and Fanfan based on which Justices have yet to author a majority opinion from the Supreme Court's October 2004 argument session.]

More than a few folks, as particularly detailed in posts here and here, have suggested that January would be a better and/or more appropriate time for a decision in Booker and Fanfan.  I am not sure I agree, since I think there are real costs — to both federal and state criminal justice systems — stemming from another month of legal uncertainty about constitutionally required sentencing procedures.  However, given the challenges SCOTUS faces and the apparently deep divisions within the Court, I suppose I should be glad the Court is taking whatever time it needs to get Booker and Fanfan right.

December 13, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (6) | TrackBack

The wait continues: no Booker and Fanfan!

Despite the widely shared belief when cert. was granted in August that the Supreme Court would resolve the post-Blakely fate of the federal sentencing guidelines this year, it now appears that we will have to wait until at least January for a decision in Booker and Fanfan.  The Court was busy today, issuing a number of opinions as detailed by SCOTUSblog here, but no Booker and Fanfan

I will have a good deal of commentary about the lack of a decision later today, and in the meantime, let the punditry, the speculating and the prognosticating continue.

December 13, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Will it be today, or another month of waiting?

Gosh knows, though I am enjoying all the speculating and prognosticating, I am ready for a decision in Booker and Fanfan. Others around the blogsphere seem ready, too, as evidenced by the recent Blakely posts from TalkLeft, The Volokh Conspiracy's Orin Kerr, and Jonathan Soglin at Criminal Appeal.  (Jonathan's post also interestingly notes that the California Supreme Court has not yet scheduled argument in its two Blakely cases, even though review was granted in July.)

Of course, the big question is whether Booker and Fanfan are ready for us.  We should know in a few hours.  Stay tuned.

December 13, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

Sunday, December 12, 2004

Is it finally Booker/Fanfan eve?

Perhaps I should try a little reverse psychology and predict the opinion in Booker and Fanfan is not coming tomorrow.  Would that lead this blog to report the opinion is coming Monday? 

Whatever is going to happen tomorrow, it is fun to read again and again Milbarge's terrific 'Twas the Night Before Booker.  I suppose it is also fun to read all these prior "pre-decision" posts:

And, as noted before, lots of additional posts of note and other background materials on Blakely and Booker and Fanfan can also be found on this Blakely Basics page.  A wealth of other information can also be accessed through the various Booker/Fanfan and Blakely page links in the right side-bar.

UPDATE: And for an effective overview of the law and politics surrounding Blakely and Booker, this article from today's Philadelphia Inquirer provides a reader-friendly summary of the major stories of modern sentencing reform.

December 12, 2004 in Apprendi / Blakely Retroactivity , Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Saturday, December 11, 2004

More prognosticating on Booker and Fanfan (and Roper)

Attorney Mark Stancil, who produces a newsletter on Supreme Court cases and whose insightful thoughts on the Booker and Fanfan oral argument were previously provided by Crime and Federalism here, has now shared his latest thoughts on the decisions for which we are all waiting.  Here is his intriguing thinking:

Shocking Booker/FanFan Prediction

Quite frankly, I'm surprised these monsters haven't come down already, particularly in light of Acting SG Clement's opening statement at oral argument that the federal system averages 1,200 sentencings per week. This is shaping up to be a nasty logjam, but I predict the end is in sight. Official word from the Court's opinion/weather hotline is that one or more decisions will be handed down on Monday (also, highs in the mid-40s, chance of showers). I figure the Apprendi/Blakely majority will serve up these stocking stuffers just in the nick of time.

For your amusement, I'll also take a stab and say Justice Thomas is writing the majority opinion on question 1 (whether Blakely applies to the Federal Sentencing Guidelines). Why?  Assuming the Blakely lineup holds, Justice Stevens would be the assigning Justice and methinks he'd be inclined to let his infrequent ally take a shot after giving Blakely to Scalia.  And Souter already has a majority assignment from the first week (KP Permanent Makeup), and surely that would have been on the back burner if he was also slogging through Booker/Fanfan. Ginsburg also has a first-week majority (Koons Buick).

But why wouldn't Stevens just keep it for himself?  Because I'd wager he'd expect to be knee deep in Roper v. Simmons (execution of juvenile offenders) on one side or the other, and would probably recognize the value of letting the always thorough Thomas plow through the minutiae of the Sentencing Reform Act and the Guidelines. Thomas' authorship is also likely to have started a war of words with Breyer, which would account for the extra weeks of back-and-forth (and, perhaps, the false rumor circulating around Washington a few weeks ago that the opinions were coming down). I make no predictions on the severability issue, except that there will be at least 4 separate opinions and bodies flying every which way.  All of this, of course, is just half-baked tea-leaf-reading by a guy hopped up on generic Day-Quil.

UPDATE: This post has prompted the (magical?) mystery blog, previously discussed here, to post another astute analysis (following up this earlier effort) concerning what might be going on inside chambers as Booker and Fanfan get hammered out.

December 11, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Friday, December 10, 2004

Is the Booker/Fanfan delay all my fault?

As I previously obliquely noted in this post, I have discovered a mysterious blog that has developed apparently with the sole purpose, as detailed here and here, of blaming my prognostications for delays in the release of Booker and Fanfan. 

Though the anonymous blog so far has only two posts, it may soon earn a place in my blogroll; not only do I enjoy the mocking, but I am quite impressed with this post's trenchant analysis of how the Justices are voting, and what is taking so long, in Booker and Fanfan.

December 10, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary | Permalink | Comments (3) | TrackBack

More Supreme Court news and speculation

What I thought would be a quiet Friday has turned into a noteworthy day because of Supreme Court announcements.  In addition to the news that more decisions are coming Monday, the Court today granted cert. on four cases, two of which have sentencing stories. 

As always, the SCOTUSblog here has all the goods.  The Court's decision to take Medellin v. Dretke, 04-5928, which concerns the right of foreign nationals on death row in the US to meet with a consular officer from their home country is especially noteworthy.  Because of the intersection of international law and the death penalty — which is raised by not central to the juvenile death penalty case Roper v. Simmons now before the Court (background here) — Medellin will surely get a lot of national and international attention.  Tony Mauro wrote this great Legal Times piece providing a lot of background on the case a few weeks ago.

Meanwhile, I have heard from a range of folks about my (wishful thinking?) prediction here that we may get Booker and Fanfan on Monday.  Some have given very good reasons to think the decision is coming Monday, and others have given very good reasons to think we will not see the decision until January. Most compelling was this reaction from a defense attorney (which I hope it is okay to share):

Your ivory tower is showing. I would have liked to see a relatively quick decision in Booker Booker and Fanfan provided it was well thought out. But, a decision on Dec. 13 is going to leave many defendants/prisoners, their families and assorted others in limbo until after Jan. 1 and/or ruin their holidays with bad news.

It could also trigger some Chirstmas madness for some of us defense attorneys [who have briefs due in early January]  Better a decision on Jan. 13 with an opportunity to file a supplemental brief unencumbered by the holidays.

December 10, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, December 08, 2004

SCOTUS still struggling: the wait for Booker and Fanfan continues

Yet again, no news on the Supreme Court sentencing front: the Court did not hand down its decision in Booker and Fanfan today.  Sorry for all the false alarms; I am as disappointed and surprised as anyone that the Court has completed now seven decisions before being able to speak to the state of federal sentencing.  I continue to speculate that the Court is really struggling with the second severability issue (some background here).   

According to the SCOTUSblog folks here and Howard Bashman here, the only other possible date for the decision this year is Monday, December 13.  And, as noted before, perhaps even a longer wait is in store for us.  Whenever the decision comes out, I trust it will be worth the wait.

In the meantime, there are lots of other state and federal sentencing stories to share and discuss (and now the mysterious Milbarge, the "Weird Al" Yankovic for the sentencing world, has more time to write more great Blakely and Booker songs).

December 8, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (6) | TrackBack

Tuesday, December 07, 2004

At least one more day to wait for Booker and Fanfan

The Supreme Court did not hand down its decision in Booker and Fanfan today, although I have now heard from a large group of insightful folks predicting that tomorrow will (finally) bring the decision.  As knowledgeable court-watchers detailed for me, the Court heard 11 arguments in the first sitting and has already issued four (relatively "easy") opinions from that sitting (as well as two other opinions). 

Thus, it seems the smart money is on an opinion tomorrow.  At this point, I will believe it when I see it. Fortunately, there is a lot of noteworthy sentencing law and policy development to keep us busy at least for the next 24 hours.  Noticing some sentencing buzz around the blogsphere this morning, I will have posts soon about mandatory minimum sentencing and Blakely in the states.

December 7, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Here we go again

As previously reported here, the Supreme Court has announced that one or more opinions from argued cases will be issued today and tomorrow.  Thus, I am preparing yet again for a decision in Booker and Fanfan.  (I figure if I keep predicting the decision is coming, eventually I have to be right.) 

Here are a few recent posts which I think are useful reading if a decision is indeed forthcoming:

Additonal posts of note and other background materials on Blakely and Booker and Fanfan can also be found on this Blakely Basics page.  And a wealth of additional information can be accessed through the various Booker/Fanfan and Blakely page links in the right side-bar.

December 7, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Friday, December 03, 2004

Wolf! Wolf! ... I mean Booker and Fanfan

Like the young man in the fable "The boy who cried wolf," I am going to (yet again) predict that Booker and Fanfan are on the horizon.  Marty Lederman at the SCOTUS Blog is reporting here that the Supreme Court "will be issuing one or more opinions from argued cases on both Tuesday and Wednesday of next week." 

I hope that means we will see Booker and Fanfan within a week, but of course I have been wrong in predicting a forthcoming opinion twice before.  This time I am wondering as well if we might even see an opinion in Roper v. Simmons, the juvenile death penalty case, although I have been assuming that one would not be coming for a while.  Of course, stay tuned.

December 3, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines | Permalink | Comments (2) | TrackBack

Wednesday, December 01, 2004

More Booker and Fanfan speculation

Over at SCOTUS Blog, Tom Goldstein here builds on Marty Lederman's speculation about what a question asked by Justice Ginsburg at oral argument yesterday might tell us about the eagerly anticipated Booker and Fanfan.  As I noted here, the Ginsburg question prompted Marty to suggest we might not see a decision until at least January. 

Interestingly, Tom is not convinced the Ginsburg question hints at a long wait for the Booker and Fanfan opinion.  But Tom thinks the question "does suggest (albeit certainly not decisively) ... that the government lost Booker/Fanfan."  This speculation dovetails with my own prognosticating here that the time it is taking for the Court issue an opinion is a sign that the Justices have decided to apply Blakely to the federal system but are struggling with the severability issue.

December 1, 2004 in Blakely in the Supreme Court, Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Tuesday, November 30, 2004

A long wait for Booker and Fanfan?

Marty Lederman over at the SCOTUS Blog has this fascinating post which speculates, based on a question Justice Ginsburg asked today during oral argument, that we might not be getting a decision in Booker and Fanfan until at least January.  (The post concludes, however, with Marty willing to "venture to predict a decision next week -- say, on December 8th.")

Interestingly, though just earlier today I was urging the Supreme Court to "get on the stick," I am not sure there should be a big rush now that I have seen the USSC's preliminary post-Blakely case processing data.  Though this data tells (and perhaps hides) a lot of different stories, I cannot help but get a sense that the vast majority of criminal cases are still moving through the federal system despite all the Blakely uncertainty. 

With the federal criminal justice apparently still functioning pretty well, the Supreme Court should definitely take all the time it needs to render a complete and clear decision in Booker and Fanfan.

November 30, 2004 in Blakely in the Supreme Court | Permalink | Comments (0) | TrackBack

Gauging the impact of delay and uncertainty

I am trying not to be grumpy about having to continue to wait for a ruling in Booker and Fanfan.  After all, the Supreme Court is obviously hard at work, as evidenced by the big arguments yesterday in Ashcroft v. Raich, the medical marijuana/federalism case (lots of details here and here), and also by the (civil law) opinion issued today with five Justices writing.

Nevertheless, I might have a hard time avoiding grumpiness if I was a judge, lawyer or defendant trying to move forward with my docket or my life at this time of great sentencing uncertainty.  The issues in Booker and Fanfan have been in stark relief for nearly five months since Judge Cassell in Croxford and Judge Goodwin in Shambin set out the Blakely basics for federal sentencing.  And many federal circuits weighed in with major opinions within weeks of Blakely (e.g., the 7th Circuit heard argument and ruled in Booker only two weeks after Blakely, the 2d Circuit issued its in banc certification ruling only a few days later, and four other circuits had at least partially weighed on Blakely before the end of July).

Of course, getting Booker/Fanfan and federal sentencing done right is much more important than getting it done fast (which is a useful lesson for Congress when it considers responses to Booker and Fanfan).  Thus, the Court should take whatever time it needs to issue a great opinion.  But, with so many federal cases likely on hold and now backed up awaiting Booker and Fanfan (as noted here and here), not to mention all the states also looking for more Blakely guidance ASAP, I suspect that the continued delay is having a profound impact on the administration of criminal justice throughout the country. 

I am hopeful that the US Sentencing Commission might soon release the data it has about post-Blakely case processing, which could provide a clearer picture of where matters stand while we all wait.  But in the meantime, perhaps readers might use the comments to report on the impact of the continued delay and uncertainty.

November 30, 2004 in Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (13) | TrackBack

They're still not here: more waiting for Booker and Fanfan

The eagle still has not yet landed.  This morning the Supreme Court did not issue its opinion in the eagerly anticipated Booker and Fanfan.  All of us, and sentencing courts around the country, will just have to keep waiting.  According to this SCOTUS Blog post, there are only a few more days this year on which the Court is likely to issue opinions.  I am starting now to wonder whether we will see a decision before January (although I will surely keep crying wolf every time the Supreme Court announces an opinion is forthcoming).

Since now it appears that a decision in Booker and Fanfan has taken at least a full two months since argument in early October (and a full four months since the cert. grant in early August), it is hard not to speculate that the Court is struggling with the second severability issue (some background here).  Though this is a bit like making predictions based on how long a jury is out, I think we would have seen a pretty quick decision if there were five votes to keep Blakely from applying to the federal system.

November 30, 2004 in Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack