Monday, March 17, 2008
More on the cool Ice grant and consecutive sentencing Blakely issue
In the weeks and months ahead, I will surely blog a lot about the many interesting aspects of the consecutive sentencing Blakely issue that SCOTUS has now taken up in the new Ice case from Oregon (basics here). For now, i will be content to link to this post at SCOTUSblog which has all the Ice cert papers and also to some of my prior posts on this issue. (I must note that, when posting here about the Oregon Supreme Court decision last October, I commented that "the case might be viewed as quite cert worthy if Oregon decides to appeal Ice to the US Supreme Court."
A few prior posts on Apprendi/Blakely and consecutive sentencing (with post date):
- Oregon Supreme Court applies Apprendi to consecutive sentences (Oct 2007)
- Will SCOTUS grant cert on Blakely consecutive sentencing issue? (May 2007)
- Washington Supreme Court addresses consecutive sentencing and Blakely (Nov 2006)
- Great Alaska opinion on Blakely and consecutive sentencing (Dec 2005)
- Is SCOTUS interested in the consecutive sentencing Blakely issue? (Aug 2005)
- Consecutive questions about consecutive sentencing (Aug 2004)
SCOTUS taking up Apprendi/Blakely consecutive sentencing issue
I am pleased to report that this morning the Supreme Court has announced that it is taking up another important Apprendi/Blakely issue. From today's SCOTUS order list (which also includes a few Gall and Kimbrough remands), here is the basic story:
07-901 OREGON V. ICE, THOMAS E.
The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted limited to the following question: Whether the Sixth Amendment, as construed in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), requires that facts (other than prior convictions) necessary to imposing consecutive sentences be found by the jury or admitted by the defendant.
Yo, Justices, Let's kick it!
Ice Ice Baby, Ice Ice Baby
All right stop, Collaborate and listen
Ice is back with a new Blakely invention
Sentencing grabs a hold of me tightly
Flow like a Justice daily and nightly
Will it ever stop? Yo I don't know...
If there is a problem, Yo, we'll solve it
Check out the issue while Berman revolves it
Ice Ice Baby Vanilla, Ice Ice Baby Apprendi
Ice Ice Baby Vanilla, Ice Ice Baby Apprendi
Monday, October 01, 2007
Bumming over cert denied
Though I am still looking forward to a big SCOTUS sentencing term, I am definitely bumming that at the top of today's huge list of cert denials is Faulks v. US. Faulks is the case from the Fourth Circuit concerning the procedures for revoking supervised release in which I helped develop a petition raising Blakely issues (details here and here).
When time permits, I hope to flag some other notable cert denials, though perhaps reads can help by mentioning other denials of sentencing interest in the comments. Ultimately, the Faulks denial is another reminder that, even with all the sentencing action this term, there are no shortage of additional (Blakely and non-Blakely) issues that I wish the Justices would tackle ASAP.
UPDATE: In the comments, Peter G. rightly note the notable absence of Rita GVR's. Here's Peter's reaction to this Rita dog not barking: "I infer that the Court is washing its hands (and modeling to the courts of appeals to wash their collective hands) of 'substantive unreasonableness' challenges to post-Booker Guidelines and below-Guidelines sentences."
Also in the comments is a query about the status of "Jeff Fisher's ACCA/juvenile adjudication case out of Washington." I believe that case was Sasouvong v. Washington (discussed here), and it also suffered the one-line fate of "cert denied."
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.
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.
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."
Sunday, May 20, 2007
Continued pitch for cert on an important Blakely issue
As detailed in this post, I am part of a team seeking cert in Faulks v. US, a case from the Fourth Circuit concerning the procedures for revoking supervised release. Our initial petition is here, and earlier this month the government filed its brief in opposition (BIO). A few days ago, we filed our reply to the government's BIO. These latest filings can be accessed here:
Though I am partial, I am genuinely convinced that the issues we have raised in Faulks need the Supreme Court's attention ASAP. If the Justices in the Blakely five (or the Cunningham six) are genuinely committed to its articulated Sixth Amendment doctrines and principles, the judge-centered procedures employed in federal supervised release revocation proceedings ought to be cause for significant constitutional concern (especially in a case with extreme facts like Faulks).
As has been well documented in the SCOTUSblog stats, SCOTUS needs to grant cert in a bunch of new cases to fill its fall argument calender. And the Court has not taken up any new Blakely issues in a while (although, of course, Claiborne and Rita might address Sixth Amendment issues). I am hopeful we have a real shot with Faulks.
Wednesday, 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.
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.
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:
- Holmes v. South Carolina (background here) presents this question: "Whether a state's rule governing admissibility of third-party guilt evidence violates a criminal defendant's constitutional right to present a complete defense grounded in due process, confrontation, and compulsory process clauses?"
- Samson v. California (background here) presents this question: "Does the 4th Amendment prohibit police from conducting a warrantless search of a person who is subject to a parole search condition, where there is no suspicion of criminal wrongdoing and the sole reason for the search is because the person is on parole?"
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.
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 Courts: I 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 Justice: I 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).
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.
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:
- At Criminal Appeal, Jonathan Soglin has this post noting that the California attorney general has to respond early next week to the cert. petition in Abeyta, which asks the Supreme Court to review California's sentencing scheme under Blakely.
- At INCourts, Michael Ausbrook has this post noting that Indiana soon has to respond to the cert. petition in Smylie, which asks the Supreme Court to examine whether judicial fact-finding to support consecutive sentencing is problematic under Blakely.
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.
Sunday, July 10, 2005
States of Blakely excitement
I have now had a chance to read quickly all of the important Blakely opinions handed down by the Arizona Supreme Court on Friday (basics here). Though the particulars are of greatest interest to folks in Arizona, the rulings reveal yet again how much important Blakely work is being done in the state courts and reinforce my belief, expressed in this post, that the dynamic realities of Blakely in the states might truly be the most interesting sentencing story of the past year.
If you get as excited as I do about Blakely in the states, not to be missed is next month's 2005 Conference of the National Association of Sentencing Commissions, which is taking place in Washington DC on August 7-9. The Conference is fittingly entitled "The Continuing Evolution of Sentencing," and as detailed in this schedule, there will be lots of state Blakely discussion throughout the conference (as well as some federal Booker talk, too). You can register for this exciting conference via this link.
And, to help everyone catch up on the most recent developments, below I have linked to some recent state Blakely posts:
- Arizona Supreme Court clears its Blakely docket
- Judicial federalism: diverse state high court Blakely rulings
- Problems in Indiana with advisory fix
- Blakely and jury trial rights getting serious respect in NC
- Resources for those in the Black (California's Blakely decision)
- Big Blakely rulings from the ends of the Union (rulings from Maine and Hawaii)
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.
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.
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.
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:
- As noted and explained in this post by Michael Ausbrook at INCourts, the Indiana Supreme Court yesterday issued a bunch of per curiam opinions discussing Blakely issues in the wake of its big Smylie decision(basics here, commentary here and here and here). I hope to comment more of these decisions, all of which can be accessed here, once I get a chance to review them closely.
- As noted and explained in this post by Tom Goldstein at SCOTUSblog, a couple of cases to be watched closely for possible cert. grants next week involve sentencing issues. One case raises the Booker pipeline issue of whether "a defendant waived a claim of Booker error on appeal by not raising the question in his opening brief." Another case from Kansas concerns "whether the Constitution permits the imposition of the death penalty when evidence of aggravating and mitigating circumstances is in equipoise, or whether the aggravators must outweigh the mitigating circumstances."
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 Booker. Though 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. 031293, 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