Wednesday, January 14, 2009

Why did Justice Stevens, the author of Apprendi, vote to Ice Sixth Amendment jury rights?

There are lots of interesting and surprising aspects to the Supreme Court's Ice ruling today, ranging from the absence of opinions from Justices Breyer and Alito (the two Justices with the most criminal justice history) to the willingness of Chief Justice Roberts to join Justice Scalia's forceful dissent.  But the biggest surprise, in my view, is the vote of Justice Stevens to reject the application (or should I say extension?) of the Apprendi-Blakely principle in the consecutive sentencing setting. 

Justice Ginsburg, as evidenced by her vote for the Booker remedy, long ago showed her concerns about taking the logic and consequences of Apprendi-Blakely too far.  But Justice Stevens had never before shown any squishiness or squeamishness about giving full effect to the Sixth Amendment jury trial rights he championed in his Apprendi and Booker opinions for the Court.  But, with Ice presenting an important opportunity to continue the "Apprendi revolution" that Justice Stevens helped start, he joins an opinion that reflects, as Justice Scalia notes, many of the arguments of the Apprendi-Blakely dissenters.

Especially notable in this context is this (gratuitous?) paragraph of important dicta in the majority opinion in Ice:

Further, it is unclear how many other state initiatives would fall under Ice’s proposed expansion of Apprendi.   As 17 States have observed in an amici brief supporting Oregon, States currently permit judges to make a varietyof sentencing determinations other than the length ofincarceration.  Trial judges often find facts about the nature of the offense or the character of the defendant in determining, for example, the length of supervised release following service of a prison sentence; required attendanceat drug rehabilitation programs or terms of community service; and the imposition of statutorily prescribed fines and orders of restitution.  See Brief for State of Indiana et al. as Amici Curiae 11.  Intruding Apprendi’s rule into these decisions on sentencing choices or accoutrements surely would cut the rule loose from its moorings.

This paragraph goes a long way to ensuring that the Sixth Amendment rights championed in the Apprendi-Blakely line of cases are not going to avail many defendants in other sentencing settings in which judges have been given broad authority to conduct fact-finding to increase sentences.  I am especially surprised that Justice Stevens was willing to allow all this this anti-Apprendi dicta carry the day in Ice.

January 14, 2009 in Blakely in the Supreme Court | Permalink | Comments (2) | TrackBack

Some choice quotes from the two opinions in Oregon v. Ice

For reasons I will explain in future posts, the Supreme Court's work today in the Apprendi-Blakely Sixth Amendment case of Oregon v. Ice (basics here) is fascinating, surprising and ultimately disappointing.  Before I get to hard-core commentary, however, it is useful to pull out the key quotes from the two opinions.

Let's start with the majority opinion, authored by Justice Ginsburg:

The question here presented concerns a sentencing function in which the jury traditionally played no part: When a defendant has been tried and convicted of multiple offenses, each involving discrete sentencing prescriptions, does the Sixth Amendment mandate jury determination of any fact declared necessary to the imposition of consecutive, in lieu of con-current, sentences?...

[T]win considerations — historical practice and respect for state sovereignty — counsel against extending Apprendi’s rule to the imposition of sentences for discrete crimes....

[L]egislative reforms regarding the imposition of multiple sentences do not implicate the core concerns that prompted our decision in Apprendi.   There is no encroachment here by the judge upon facts historically found by the jury, nor any threat to the jury’s domain as a bulwark at trial between the State and the accused....

States’ interest in the development of their penal systems, and their historic dominion in this area, also counsel against the extension of Apprendi that Ice requests....

Members of this Court have warned against “wooden, unyielding insistence on expanding the Apprendi doctrine far beyond its necessary boundaries.”  Cunningham, 549 U. S., at 295 (Kennedy, J., dissenting). The jury-trial right is best honored through a “principled rationale” that applies the rule of the Apprendi cases “within the central sphere of their concern.” 549 U. S., at 295. Our disposition today — upholding an Oregon statute that assigns to judges a decision that has not traditionally belonged to the jury — is faithful to that aim.

Now let's hear from the dissent, per Justice Scalia:

The rule of Apprendi v. New Jersey, 530 U. S. 466 (2000), is clear:  Any fact — other than that of a prior conviction — that increases the maximum punishment towhich a defendant may be sentenced must be admitted bythe defendant or proved beyond a reasonable doubt to a jury. Oregon’s sentencing scheme allows judges ratherthan juries to find the facts necessary to commit defendants to longer prison sentences, and thus directly contradicts what we held eight years ago and have reaffirmed several times since.  The Court’s justification of Oregon’s scheme is a virtual copy of the dissents in those cases....

We have taken pains to reject artificial limitations upon the facts subject to the jury-trial guarantee....

The decision to impose consecutive sentences alters the single consequence most important to convicted noncapital defendants: their date of release from prison.  For many defendants, the difference between consecutive and concurrent sentences is more important than a jury verdict of innocence on any single count: Two consecutive 10-year sentences are in most circumstances a more severe punishment than any number of concurrent 10-year sentences.

To support its distinction-without-a-difference, the Court puts forward the same (the very same) arguments regarding the history of sentencing that were rejected by Apprendi....

The Court’s reliance upon a distinction without a difference,and its repeated exhumation of arguments dead and buried by prior cases, seems to me the epitome of the opposite [of a "principled rationale" for applying Apprendi].  Today’s opinion muddies the waters, and gives cause to doubt whether the Court is willing to stand by Apprendi’s interpretation of the Sixth Amendment’s jury-trial guarantee.

UPDATE:  On the topic of choice quotes, the post by Kent at C&C about this case has the best turn of phrase to describe the holding: "Apprendi Sprawl Frozen in Ice."

January 14, 2009 in Blakely in the Supreme Court | Permalink | Comments (17) | TrackBack

Fascinating SCOTUS split in rejecting Blakely's application to consecutive sentencing

The Supreme Court has today handed down its latest Blakely ruling with its decision in Oregon v. Ice.  Here is the early report from SCOTUSblog:

The Court has released the opinion in Oregon v. Ice (07-901), on whether judges may impose consecutive sentences based on facts neither found by the jury nor admitted by the defendant. The ruling below, which found for the defendant, is reversed and remanded. Justice Ginsburg wrote the majority opinion. Justice Scalia wrote a dissenting opinion, joined by the Chief Justice and Justices Souter and Thomas. The ruling is now available here.

The break down of the Justices in the 5-4 ruling is fascinating, and I am sure I will have a lot more to say about the Court's efforts here in future posts.

I suppose I need to start my commentary, however, by taking back this recent comment that the Supreme Court is most pro-defendant appellate court in the nation on sentencing issues.  But, of course, proving again that Blakely issues make for strange voting block, three supposedly liberal Justices (Breyer, Ginsburg and Stevens) are the key to the defendant's loss in Ice.

January 14, 2009 in Blakely in the Supreme Court | Permalink | Comments (16) | TrackBack

Wednesday, October 15, 2008

Two very different takes on Ice

Two top-notch court watchers have two very different perspectives on what yesterday's oral argument in Oregon v. Ice might mean for the future of the Apprendi/Blakely line of Sixth Amendment cases.  Lyle Denniston, in this long post at SCOTUSblog, starts his summary of the Ice argument this way:

With Justice Stephen G. Breyer waging, seemingly alone, a rear-guard effort to limit juries' fact-finding role in determining criminal sentences, the Supreme Court on Tuesday displayed a strong inclination to stay on course in the eight-year effort to add to the jury’s power.

In sharp contrast, Kent Scheidegger, in this long post at Crime and Consequences, ends his post with this radically different assessment:

This looks pretty good for the state.  Justices Stevens and Ginsburg, both essential votes for the extension of Apprendi in Booker, seem to be reluctant to extend it this far.

My first read of the Ice transcript led me toward Lyle's assessment, but I have long given up making serious predictions about anything concerning what the Justices are going to be doing in the Apprendi/Blakely line of constitutional rulings.  However, the fact that the traditional left/right divide does not hold in this Sixth Amendment setting perhaps explains why the Court's efforts even at oral argument are hard to assess (and also explain why I find this jurisprudence so interesting).

Some related Ice posts:

October 15, 2008 in Blakely in the Supreme Court | Permalink | Comments (1) | TrackBack

Tuesday, October 14, 2008

Ice oral argument transcript now available

I have not yet had a chance to review the Ice oral argument transcript, but it is now available at this link.  As explained in this preview post, the Ice case has the potential to heat up or cool down lower court debates over the reach of Blakely and the limits of judicial fact-finding at sentencing.

I plan to post later on anything really significant that jumps out from the oral argument transcript.  In the meantime, readers are encouraged to use the comments to give their views on whether the Ice argument proved to be hot or cold.

UPDATE:  After a quick read of the transcript, I was surprised and somewhat disappointed that the jurisprudential discussion of Apprendi and Blakely has not become more advanced and sophisticated even a full decade into this modern Sixth Amendment debate. That said, I was surprised and somewhat pleased to see pro-Sixth Amendment instincts expressed by nearly every member of the Cunningham six during the Ice argument (though Justice Thomas remained his usual quiet self).

For a variety of reasons, I have been fearful that the six Justices who continued to champion Sixth Amendment principles in the Cunningham decision dealing with California's sentencing system (who are the five Justices in the Apprendi/Blakely majorities plus Chief Justice Roberts) are not eager to keep the modern Sixth Amendment sentencing revolution marching forward.  But the transcript of the Ice argument suggested to me that Justice Breyer, who has always opposed the Apprendi/Blakely line of cases, may be the only Justice deeply and seriously concerned about the possible consequences of continued commitment to the principles of this line of cases. 

I had expected that Justices Alito and Kennedy, who were part of the dissenting block in Cunningham, would be vocal in articulating concerns about the arguments put forward by the defendant in Ice.  But Justice Alito was surprisingly quiet during argument — I do not think he asked a single question — and Justice Kennedy did not reveal any deep continuing hostility to Apprendi principles.  I am now starting to wonder if every member of the current Court, save Justice Breyer, is ready to have their ticket stamped to Apprendi-land.  If so, and especially if Ice ruling ends up reflecting this new reality in bold terms, it could end up being a sleeper case this Term.

October 14, 2008 in Blakely in the Supreme Court | Permalink | Comments (8) | TrackBack

Monday, October 13, 2008

The little Ice case that could (but probably won't)...

Enginebe a major Sixth Amendment ruling.  As detailed here at SCOTUSblog, Tuesday afternoon the Supreme Court will hear argument in Oregon v. Ice, which explores whether the Apprendi/Blakely rule limiting judicial fact-finding at sentencing extends to determinations required under state law for the imposition of consecutive sentences.  I did a preview of this case for the ABA, which can be downloaded below.  Here is a snippet of my analysis from that preview:

Continued uncertainty about what the current Justices now think about the Sixth Amendment rule championed in Apprendi and Blakely increases the uncertainty over whether the Court’s decision in Ice will be bold and significant.  If a group of five or more Justices remains eager to limit certain judicial fact-finding at sentencing, the Court could produce a broad and consequential decision that not only favors the defendant, but also suggests that lower courts should be applying the Sixth Amendment in an array of new sentencing settings.  Conversely, if a group of five or more Justices is now eager to remove remaining constitutional uncertainty about what Blakely means for various forms of judicial fact-finding at sentencing, the Court could produce a broad and consequential decision that not only favors the state but also suggests that lower courts should not be too concerned about Sixth Amendment rights in various sentencing settings.

Tellingly, the Supreme Court has not taken up many post-Blakely issues in recent years, even though lower courts have frequently turned back arguments by defendants and defense counsels to apply and expand Blakely’s reach in a variety of new sentencing settings.  This reality perhaps suggests that the Court may be more inclined to limit than to expand the reach of Blakely in this case....

Because Chief Justice Roberts has publicly suggested he favors narrow constitutional rulings that produce more consensus than dissension within the Court, one might expect a relatively narrow ruling in Ice garnering the votes of most or all Justices.  The specific consecutive/concurrent sentencing issue in Ice could be resolved on relatively narrow grounds without requiring the Court to significantly expand or significantly limit the reach of the Sixth Amendment.  But, then again, one hallmark of the Apprendi and Blakely line of cases has been unpredictability.  Ice could be a sleeper case if a group of Justices prove eager to use the opinion in this case as an opportunity to champion again the importance of the jury in modern criminal justice settings.

Download aba_preview_of_ice.pdf

October 13, 2008 in Blakely in the Supreme Court | Permalink | Comments (9) | TrackBack

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):

March 17, 2008 in Blakely in the Supreme Court | Permalink | Comments (0) | TrackBack

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.

Sing it with me, Blakely fans: Ice, Ice Baby.  Here's a bit of fractured lyrics sampling from the original to celebrate the SCOTUS litigation occasion:

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

March 17, 2008 in Blakely in the Supreme Court | Permalink | Comments (1) | TrackBack

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."

October 1, 2007 in Blakely in the Supreme Court | Permalink | Comments (5) | TrackBack

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