Monday, December 13, 2004

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

Sunday, December 12, 2004

Thoughtful coverage of major sentencing issues

I have praised the press's recent potent coverage of a range of sentencing law and policy issues (some examples here and here and here), and this morning there are more fine articles on all the most important sentencing issues of the day:

December 12, 2004 in Blakely Commentary and News, Blakely in the States, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Wednesday, December 08, 2004

Rockefeller reform a (compromise) reality

Yesterday I pondered whether we might soon see movement on mandatories, and the news from New York came quick.  As this New York Times article explains:

After years of false starts, state lawmakers voted Tuesday evening to reduce the steep mandatory prison sentences given to people convicted of drug crimes in New York State, sanctions considered among the most severe in the nation.

The push to soften the so-called Rockefeller drug laws came after a nearly decade-long campaign to ease the drug penalties instituted in the 1970's that put some low-level first-time drug offenders behind bars for sentences ranging from 15 years to life.

Under the changes passed Tuesday, which Gov. George E. Pataki said he would sign, the sentence for those same offenders would be reduced to 8 to 20 years in prison. The law will allow more than 400 inmates serving lengthy prison terms on those top counts to apply to judges to get out of jail early.

Quotes throughout the Times article, as well as additional effective articles from other New York newspapers here and here and here and here, highlight that the changes are the product of a legislative compromise that has disappointed many who were pushing for broader drug sentencing reform.  As noted in the lead of this Albany Times Union article:

Depending on who you talked to Tuesday, state lawmakers either broke a long-standing logjam and took real steps to reform the Rockefeller Drug Laws, or merely tinkered with the harsh laws and frittered away any chance of future negotiations.

TalkLeft here provides more highlights, and more concerns, about the Rockefeller reform outcome in Albany.  Ever the optimist, I am inclined to celebrate an important (and overdue) step forward, and hope it is only the first step toward continued rethinking of drug sentencing policies and practices both in New York and throughout the nation.

December 8, 2004 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (30) | TrackBack

Deep thoughts about shallow conceptions of equality

Sentencing guru Professor Marc Miller (who is also one of my casebook co-authors and a great friend) has posted on SSRN a draft of his latest sentencing article, entitled "Sentencing Equality Pathology."  The first line of Marc's abstract spotlights both the article's theme and its great importance: "This short article critiques the highly constrained notions of equality in modern sentencing reform."

The article terrifically details (in under 20 pages!) how stunted and underdeveloped — and yet dominant — the concepts of "equality" and "disparity" have been in the federal sentencing reform dialogue, and this makes the article a must-read for everyone contemplating the post-Blakely sentencing landscape.  Though Marc's article is focused on pre-Blakely developments and perspectives, I view the Blakely decision in part as a (long-overdue) statement by the Supreme Court that some other values — such as the jury trial right and a commitment to adversarial justice — need to be balanced with, or perhaps integrated into, our modern quest to achieve sentencing equality.

Here are more highlights from the article's abstract:

While Congress made the reduction of unwarranted sentencing disparity a primary goal of the Sentencing Reform Act of 1984, the past two decades have not produced nuanced conceptions of disparity and equality in the federal system. The language of formal equality has continued to dominate the federal discussion of sentencing. The focus on apparent outcome equality in sentencing has become a pathology of federal sentencing reform for the past twenty years. The narrow focus of judges and the United States Sentencing Commission on achieving sentences that appear similar for offenders who appear similar — in other words, the absence of any context beyond formal outcome equality — has allowed Congress to shape federal sentences into a ready political tool....

Building on work by Professor Martha Fineman on the contextual nature of equality in other areas, this article suggests that fuller conceptions of equality in sentencing must reject narrow time-framing, account for the multiple screening and sorting functions of the criminal process (including sorting within and among criminal justice systems), attend to the justifications for punishment and evidence in support or against those justifications, and consider sentencing within the broader context of the causes and solutions to the social problem of crime. Functionally these goals can be advanced through continuing efforts at defining ideas and through comparative study of different places (including state and non-U.S. systems) and different times.

December 8, 2004 in Blakely Commentary and News, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Sunday, November 28, 2004

Two must-reads from Professor Frase

I just came across on SSRN two articles recently posted by Professor Richard S. Frase, a leading (and prolific) academic voice in the field of sentencing reform. From a review of the abstracts and a quick scan of the text, both articles appear to be must-reads for any scholar (or policy-maker) seriously interested in sentencing law and policy.  Here are the abstracts, with links to SSRN, for both pieces:

Sentencing Guidelines in Minnesota, 1978-2003 (in Crime and Justice: A Review of Research, Vol. 32, Michael Tonry, ed., University of Chicago Press):

This article examines the origins, purposes, evolution, and impact of Minnesota's pioneering sentencing guidelines reform. The Guidelines, related sentencing laws, and charging and sentencing practices have evolved considerably since 1980, and so have Minnesota's reform goals. Most of these goals have been achieved: sentences are more uniform and proportionate; policy formulation is more systematic and informed by data; sentencing has been coordinated with available correctional resources, avoiding prison overcrowding and ensuring that space is available to hold the most serious offenders; "truth in sentencing" has been achieved; custodial sanctions have been used sparingly; and the Guidelines remain fairly simple to understand and apply. The Guidelines have been least successful when they have attempted to change firmly-established practices and values. In particular, the Guidelines Commission's emphasis on Just Deserts was undercut by subsequent appellate caselaw, legislation, and sentencing practices (although the system created by the enabling statute and the Commission was always a hybrid, allowing utilitarian purposes to play a very important role). Minnesota has achieved a workable and sustainable balance not only between sentencing purposes but in other important areas - in the tradeoff between uniformity and flexibility, and in the powers of the Commission, the Legislature, appellate courts, and practitioners to control sentencing policy and case outcomes.

Excessive Prison Sentences, Punishment Goals, and the Eighth Amendment: Proportionality Relative To What?  (forthcoming in the Minnesota Law Review, Vol. 89):

This article examines constitutional proportionality requirements. The focus is on the assessment of lengthy prison sentences under the Eighth Amendment. However, the proportionality principles discussed have much broader application, both within and outside the field of sentencing. In the wake of the recent California three-strikes cases, upholding sentences of 25-to-life and 50-to-life imposed on two repeat property offenders, it is very unclear when a prison term will be held to violate the Eighth Amendment, and on what precise grounds. Justices Scalia and Thomas believe that the concept of proportionality is unworkable; they assert that the concept is inherently tied to retributive sentencing goals, yet the Court's cases specify that the Constitution permits sentences to be based on a variety of non-retributive (crime-preventive) goals. What does it mean to say that a penalty is disproportionate relative to non-retributive goals? None of the justices has ever addressed this question, and scholars have not done so in any systematic way. The answers to this question can be found in the Court's own cases. This article identifies one retributive and two non-retributive proportionality principles which are implicit in Eighth Amendment decisions, and also in cases from many other fields of constitutional law. The same three principles also find strong support in lower court decisions, in constitutional cases from other Western countries, and in regional and international law. The article examines the many forms these principles have taken, and suggests how they can be used to make proportionality analysis of prison terms more precise and more meaningful. The article is principally addressed to scholars, lawyers, and judges seeking to interpret the Eighth Amendment and its state constitutional counterparts. However, these proportionality principles can also be helpful in formulating subconstitutional sentencing law and policy. A third goal of the article is to increase awareness of proportionality principles that are implicit in U.S. law but rarely identified as such.

November 28, 2004 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, November 09, 2004

Lots to do while we wait

My knowledgeable sources tell me that the earliest we would see an opinion in Booker and Fanfan is now November 15, and they also say that November 29 (the Monday after Thanksgiving weekend) is even more likely.  Fortunately, there are lots of Blakely activities to keep us busy in the meantime.

If you are in a Supreme Court mood, you can follow the happenings in the other Washington and Indiana.  Starting this morning, the Washington Supreme Court will be considering a series of Blakely cases and issues over two days as detailed here and here, and you can even hear a live webcast of tomorrow morning's Blakely-related cases in the Indiana Supreme Court here.  The Seattle Post-Intelligencer in this article previews the Washington cases with a focus on the retroactivity; INCourts and the Indiana Law Blog will surely provide great coverage of the Indiana cases.

If you want to focus on what's going on in the trial courts, you can keep on eye on the work of the sentencing jury in the Enron Nigerian barge case (background here), which according to this report is back to deliberating over contested sentence-enhancing guideline factors.  Or you can study this Administrative Order Regarding Sentencing After Blakely from Rhode Island US Judge William E. Smith (it is two months old, but I just came across it). Or you can lament that, according to this report, white supremacist Matt Hale's sentencing is being delayed until we see a decision in Booker and Fanfan.

And if you want to focus on the work of a commission, you can join me in gearing up the this US Sentencing Commission hearing next week.  Though I believe the hearing's witness list is still being finalized, I have heard that a number of the folks who wrote for the Federal Sentencing Reporter's Blakely Issues (16.5 and 17.1) have been invited to testify.  I will provide more details, and copies of any written materials I receive (such as the PAG Letter here), as soon as possible.

November 9, 2004 in Blakely Commentary and News, Blakely in the States, Blakely in the Supreme Court, Booker and Fanfan Commentary, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Booker and Fanfan pre-reading guide

If Booker and Fanfan are decided today — and that is still a big "if" — there will be so many ways to examine and assess what the Supreme Court says (and does not say). Besides obviously being concerned with the basic holding and vote count, I will also be thinking about:

1. Who writes the majority opinion and any concurrences or dissents.

2. Whether the Court's opinion discusses constitutional provisions other than the Sixth Amendment and how the Court handles precedents like Watts and McMillan and Williams.

3. Whether the Court's opinion, directly or indirectly, speaks to the continued vitality after Blakely of recent key precedents like Almendarez-Torres and Harris (background on these issues can be found here).

4. Whether the Court's opinion, directly or indirectly, speaks to issues relating to Blakely's retroactivity.

5. Whether the Court's opinion, directly or indirectly, speaks to issues confounding state courts such as Blakely's applicability to consecutive sentencing determinations or the scope of the "prior conviction" exception (or the dozens of other smaller "Blakely scope" issues).

I could go on — there are also many questions about permissible remedies for current cases and advising other branches about how to handle future cases — but I am already exhausted just thinking through all the issues. What I fear most before seeing any opinion is the prospect of a deeply fractured Court creating uncertainty on even those issues it directly addresses. Here's hoping that, no matter what the Court says, it speaks with a relatively clear voice.

November 9, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Friends in high places

With many thanks to Michael Ausbrook of INCourts for the head's up, I was extremely pleased to discover that I apparently have readers and fans in the Indiana Prosecuting Attorneys Council (IPAC).  Yesterday, two days before the Indiana Supreme Court hears its Blakely cases of Heath and Smylie (background here and here), IPAC filed an amicus brief in which my forthcoming article "Conceptualizing Blakely" and its discussion of an offense/offender distinction play a prominent role.  (Over at INCourts you can get more background here and here on the Indiana brief and the Heath and Smylie arguments.)

The full IPAC brief, which you can access here, is an interesting read not only for the offense/offender discussion, but also for its views on consecutive sentencing after Blakely and its assertion that Indiana "courts need not await action by the legislature to establish remedial procedures to insure compliance with Blakely."  But, of course, ever the egoist and egotist, my favorite parts of the brief are those where my "Conceptualizing Blakely" article (available at this post) gets heavy play.  And I especially liked the brief's conclusion, which states: "If Blakely is held to govern Indiana sentencing statutes making a distinction between offense facts and offender characteristics is essential to conducting a rational sentencing system."

November 9, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in the States, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack

The power of positive thinking?

Especially with a decision in Booker and Fanfan perhaps only hours away, now is a good time to recall earlier positive and negative posts about Blakely and expected reactions thereto.  Glass-half-full types in the mood to think positive should go here and here, glass-half-empty types in the mood to think negative should go here and here.

And for those interested in more optimism, this article from entitled "Sentencing: Legal Efforts Hint of Change" puts a very positive spin on Blakely and also on the defeat of Proposition 66, the effort to amend California's Three Strikes Law.  Though this article may actually be too upbeat even for an eternal optimist like me, the piece gives a long and effective account of reasons why the "era of locking up non-violent criminals for lengthy sentences seems to be coming to a close."

November 9, 2004 in Blakely Commentary and News, Blakely in the States, Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Wednesday, November 03, 2004

More election/sentencing news of note

With thanks to Howard Bashman at How Appealing for the link, here is a very interesting story about a state district judge in Kansas who won (rather handily) a retention election "despite an effort to oust her because of her sentencing record" organized by a group called The Justice for Children Committee. Here are some of the highlights from a quite interesting article:

The campaign was the first time in county history a judge faced formal opposition heading into a retention election.

The controversy began earlier this year when Martin granted sentences of probation and community service to two men convicted of having sex with an intoxicated 13-year-old girl -- a crime classified as rape under state law. Sentencing guidelines say a rapist should face at least 13 years in prison, but the law also says a judge can give a lesser sentence if there are "substantial and compelling reasons."

The Justice for Children Committee insisted the anti-Martin effort wasn't about one case, though the victim's mother was instrumental in organizing it. The group listed 15 cases where it thought Martin had been too lenient and pointed out she'd been reversed eight times by higher courts.

But [Dan] Watkins, [head of a committee formed to support the judge,] said it helped the judge's case that 16 jurors who heard the rape trials signed on to a list of supporters. Also, many of the cases cited by the judge's critics hinged as much on prosecutors' and victims' input as on Martin's.

November 3, 2004 in State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, November 01, 2004

Blakely analysis and insights for ALI's sentencing project

As many readers may know, the American Law Institute has been working for the last few years, under the leadership of Professor Kevin R. Reitz as Reporter, on revising the (long-out-of-date) sentencing provisions of the Model Penal Code. (You can read here about the ALI's basic (pre-Blakely) plans for revision, and note here all the amazing people involved in the project. UPDATE: Kevin has noted that the "Plan for Revision" (linked above) was itself updated and revised in the April 2003 "Model Penal Code Sentencing: Report" presented at the ALI's annual meeting and available here.)

Needless to say, Blakely has disrupted the on-going work of the ALI, although the need for model sentencing legislation really becomes even more acute in the wake of Blakely. A few weeks ago, Kevin Reitz prepared a "Report to the Council" for the ALI as an early discussion paper to help explain the impact and import of Blakely and to help identify particularly the problems that Blakely may create for effective reform in state sentencing systems.

This discussion paper, which Kevin has graciously made available for posting here, does a wonderful job explaining the many open and interesting questions that the Blakely line of cases pose (some of which are also noted in my "Conceptualizing Blakely" article here). The paper also effectively canvasses legislative options in the wake of Blakely (and the pending Booker and Fanfan), while also making a host of interesting and important analytical observations along the way.

Put simply, this paper is a must read for those thinking hard about the post-Blakely future of sentencing reforms.
Download mpc_report_to_the_council_2004_for_blog.doc

November 1, 2004 in Blakely Commentary and News, Blakely in the States, Purposes of Punishment and Sentencing, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Thursday, October 14, 2004

Better than okay in OK

I have a fast hotel connection here in Oklahoma City (where I am participating in this exciting conference tomorrow). And to celebrate all things Sooner, I cannot help linking back to the great O'Daniel decision by Chief Judge Sven Erik Holmes of the Northern District of Oklahoma here, and also a great pre-Blakey report from the Oklahoma Sentencing Commission here.

October 14, 2004 in State Sentencing Guidelines | Permalink | Comments (2) | TrackBack

21st Century Sentencing

Though I will have a few more posts before I head to the airport, I am on the road again this afternoon to participate in this terrific sentencing conference at the Oklahoma City University School of Law. The conference, organized by OCU Professors Jean Giles, Barry Johnson and Arthur LeFrancois, is astutely entitled "Reforming the Reform: Sentencing in the Twenty-First Century," and further descriptions of the event and participants can be found here and here.

The folks at OCU deserve lots of credit for having the foresight to plan this conference well before the Blakely decision and also for having the insight that many critical sentencing topics besides Blakely merit continued attention. Though I will be on one big panel discussing Blakely (where I hope to get more feedback on my offense/offender ideas articulated here), the event appropriately starts with University of Pennsylvania Professor Paul Robinson exploring the fundamental question "What Should Sentencing Try to Achieve?"

After the Blakely discussion, UC Berkeley Professor Franklin Zimring will give a keynote on "The Scale of Imprisonment in the Proximate American Future," and afternoon panels will examine the important topics of "Race and Sentencing," and the "Economics of Sentencing." I am quite excited to be participating in this event, and especially looking forward to hearing what Professor Robinson — who was a member of the original US Sentencing Commission — and Professor Zimring — who has done great work on 3 Strikes in California and always integrates empirical research with policy analysis — think about our new sentencing world order.

I hope to have internet connectivity while traveling, though I suspect posting may be light from this afternoon through the weekend.

October 14, 2004 in Blakely Commentary and News, Federal Sentencing Guidelines, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, October 12, 2004

The Minnesota courts officially address Blakely

It is a big Blakely day in the states. Following the important decisions out of New Jersey (noted here), we also today get noteworthy rulings from Minnesota.

For quite some time, the Minnesota Courts of Appeals have been just remanding cases raising Blakely issues, as noted here (and see also today's State v. Conley, 2004 WL 2283421, (Minn. App. Oct. 12, 2004). Of course, these decision have been against the backdrop of the reports by the Minnesota Sentencing Guidelines Commission (available here and here) which concede that there are Blakely-problematic elements of state law.

Today, officially, the Minnesota Court of Appeals holds, in two published decisions, that Blakely invalidates upward departures and sentences under Minnesota's "career offender" statute. The decisions in Minnesota v. Conger, A03-1771 (Minn. App. Oct. 12, 2004), and Minnesota v. Mitchell, A03-110 (Minn. App. Oct. 12, 2004), are both quite interesting reads, especially because the state apparently has been arguing that Blakely is inapplicable in Minnesota because the "Minnesota sentencing guidelines are not mandatory but merely 'advisory to the district court.'" In Conger, the court reject this claim in the following passage:

[E]ven though the sentencing guidelines are advisory to the district court, and a person convicted of a felony does not have a right to receive the presumptive, fixed sentence established by the Sentencing Guidelines Commission for that person's offense, a district court that does not impose the presumptive, fixed sentence is required to make findings of fact that support the court's reasons for departing from the presumptive sentence. This means that under the Minnesota sentencing procedures, the applicable presumptive, fixed sentence established by the Sentencing Guidelines Commission is the maximum sentence that a judge may impose without finding facts that support a departure, and a judge who imposes an upward durational departure must do so in a manner that complies with the Sixth Amendment to the United States Constitution as explained in Blakely.

October 12, 2004 in Blakely in Appellate Courts, Blakely in the States, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (4) | TrackBack

Tuesday, October 05, 2004

What was not discussed at oral argument

Posts here and here and here provide a sea of coverage of what was said at yesterday's oral argument in Booker and Fanfan. As many of these media and blog accounts highlight, there was plenty of discussion of how present and future federal sentencings might be handled in the wake of Blakely. (It is worth remembering here that if (when?) Congress gets involved, the realities of Ex Post Facto doctrine will limit its ability to impact existing cases; any changes which operate to lengthen federal sentences can only have prospective application.)

But not discussed at all during the argument was the critical question of how past cases could be impacted by Blakely — that is, no one mentioned the issue of retroactivity in any way. This is not really surprising; the retroactivity issue was not formally before the High Court in Booker and Fanfan, nor was it mentioned at all in any of the briefs. However, as I noted here and here, whatever the Justices say in Booker and Fanfan could have at least an indirect impact on the realities and the perceptions of whether the Blakely rule must be applied to sentences that became final before June 24, 2004.

Moreover, my crackerjack research assistant recently pointed out to me that in the modern uber-case on retroactivity, Teague v. Lane, 489 U.S. 288 (1989), Justice O'Connor writing also for Chief Justice Rehnquist and Justices Scalia and Kennedy suggested that "the question whether a decision announcing a new rule should be given a prospective or retroactive effect should be faced at the time of that decision." Id. at 300 (citation omitted). Obviously, the Supreme Court did not speak directly to retroactivity issues in Blakely. Indeed, the High Court has not yet even officially addressed Apprendi's retroactivity, even though Ring's non-retroactivity was settled with Shriro (see here and here for some general discussion of Blakely retroactivity issues).

I would be surprised if Booker and Fanfan formally address retroactivity questions, though there is certinly a huge prison population eager to make Blakely claims even when sentences long ago became final. As but one example, consider the recent state case of People v. Schrader, 2004 WL 2192550 (Ill. App. 1 Dist. Sept. 30, 2004): a defendant sentenced in 1982 raised Blakely to assail his 70-year murder sentence because the sentencing judge was able to add 30 years to the defendant's maximum sentence based on the find that the defendant's behavior was "brutal and heinous."

October 5, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Tuesday, September 28, 2004

Re-stating the state of the states

As we continue to gear up for all the federal fun in Booker and Fanfan, the states keep chugging along with Blakely. For example, Marcia Oddi at the Indiana Law Blog reported here yesterday that the Indiana Supreme Court has now docketed two Blakely cases and provided for consolidated oral argument on November 10th. The two cases are Heath v. State and Smylie v. State; a great Indiana correspondent reports that "Heath is pretty run-of-the-mill, to the extent that anything can be in current situation. Smylie will raise the issue of Blakely and consecutive sentences."

Meanwhile, my wonderful research assistant — who previously created here downloadable copies of all the text of this blog (through Sept. 15) — has now produced a distinct document which assembles just the posts I have done on Blakely's impact and application in the states. Of great help, the Word document includes imbedded links and a Table of Contents to make it easier to see which states have been most Blakely active:
Download blog_posts_on_blakely_in_the_states.doc

September 28, 2004 in Blakely Commentary and News, Blakely in the States, State Sentencing Guidelines | Permalink | Comments (2) | TrackBack

Tuesday, September 14, 2004

Limiting the impact of Blakely in California

Just as most of the federal circuit courts seem to be doing their best to limit the Blakely fallout in the federal system (at least until Booker and Fanfan are decided), the California intermediate appellate courts are working hard to keep Blakely from disrupting too many California sentences. The latest case in point is People v. Sample, 2004 WL 2027285 (Cal. App. 3 Dist. Sept. 13, 2004), in which the court asserts on every possible ground that the defendant's Blakely claim is unavailing:

Defendant did not raise an Apprendi objection in the trial court, and factors used in imposing the upper term and consecutive sentencing were uncontested at trial and supported by overwhelming evidence. Hence, defendant is barred from raising the claim of Apprendi/Blakely error.

In any event, the rule of Apprendi and Blakely does not apply to California's consecutive sentencing scheme, and imposition of the upper term here was harmless beyond a reasonable doubt.

Similarly, in two unpublished opinions last week, two different California intermediate appellate courts gave the "prior conviction" exception a broad reading and application to affirm sentences that are arguably Blakely problematic. See People v. Bushnell, 2004 WL 2011414 (Cal. App. 2 Dist. Sept. 10, 2004); People v. Som, 2004 WL 1966058 (Cal. App. 3 Dist. Sept. 07, 2004).

Among other realities, these decisions highlight the mess that Blakely has created for state sentencing systems. They also spotlight the question of whether state courts will be able to effectively clean up state Blakely messes on their own, or will need the Supreme Court to soon address issues like the "prior conviction" exception and the applicability of Blakely to consecutive sentencing in order to bring order and normalcy back to state sentencing.

September 14, 2004 in Blakely Commentary and News, Blakely in the States, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Saturday, September 11, 2004

Ohio v. Scheer: a Rosetta Stone for sentencing reform?

I have previously discussed at length the fascinating challenges of figuring out what Blakely's formal rule might mean for Ohio's functional sentencing laws (see posts here and here and here). Yesterday, I found an intermediate Ohio appellate court decision, Ohio v. Scheer, 2004 WL 2008628 (Ohio App. 4 Dist. Sept. 1, 2004), which is fascinating for both Blakely and non-Blakely reasons. (Strangely, the decision is dated September 1, but only first appeared on-line yesterday.)

Though a fairly run-of-the-mill case, I think Scheer could be seen as a Rosetta Stone of sentencing reform. So many insights might be drawn from the case's facts and the court's ruling, careful study of the decision could, like the famed stone of Rosetta which helped scholars better understand the meaning of Egyptian hieroglyphics (background here and here), help scholars better understand the dynamics and challenges of modern sentencing reform. Let me try to explain.

Scheer involved appeal of a "sentence to the maximum, consecutive term of twelve months imprisonment for each of two counts of passing bad checks." Those familiar with Ohio law already can see how the case raises at least two Blakely issues, since a sentencing judge in Ohio must make certain findings before imposing a maximum term and also before imposing consecutive sentences. Adding to the intrigue, Scheer's two conviction followed a plea bargain in which "the State dismissed the remaining two counts of the indictment [which alleged more serious felonies] and agreed to recommend a sentence of community control sanctions if Scheer made full restitution to the victim in the amount of $89,698.81 prior to the sentencing hearing." If Scheer did not make restitution prior to sentencing, the State recommend six months on each count and a court order of restitution. The case thus also raises interesting questions about the impact of prosecutorial discretion and the use of alternatives to incarceration.

The story of Scheer goes on: "Scheer failed to appear at the original sentencing hearing, and was subsequently arrested on a warrant issued by the court. At the time of the sentencing hearing, Scheer had not made restitution." The court then — after making lengthy on-the-record statements referencing the seriousness of the dismissed counts, that the "Defendant has a lengthy and extensive criminal history ... and shows no genuine remorse concerning his actions herein," that the "victim in this case has suffered substantial economic harm," and the "purposes and principles under 2929.11 of the Ohio Revised Code," — concluded that Scheer "is not amenable to available community control sanctions." Based on all these consideration, the trial court thus "sentenced Scheer to twelve months incarceration on each count, the maximum sentence for a fifth degree felony, and ordered that the sentences run consecutively. The court also ordered Scheer to make full restitution to the victim."

The defendant in Scheer objected to some of the sentencing court's findings regarding his criminal history and lack of remorse, and thus the case raises a range of consequential Blakely procedural issues. And, of course, the judge's sentencing decision implicates broader substantive questions about consideration of "dismissed" conduct, criminal history, victim harms, lack of remorse, and "purposes and principles."

In an extremely thoughtful and yet still opaque ruling, the appeals court in Scheer rejects the defendant's Blakely claim, though without addressing every possible Blakely issue. The court also rejects the substance of the defendant's other legal and factual challenges to the sentencing court's decision. However the appeals court still reverses and remands Scheer's sentence with a ruling that raises questions about the importance of written sentencing findings and appellate review. According to the appeals court, the sentencing court's findings were not sufficiently linked to its final sentencing determination:

Although the court made the requisite findings, it did not state the rationale or reasons that support those findings for either the maximum or consecutive sentences. The court made certain factual findings when it determined that community control sanctions were inappropriate and imposed a prison sentence; however, the court never indicated that it was relying on some or all of these findings in imposing maximum or consecutive sentences.... While we recognize that it might seem we are elevating form over substance as the court's reasons for imposing the sentences might be gleaned from the transcript as a whole, the Supreme Court of Ohio has indicated that it will require strict compliance with the provisions of the sentencing statutes. Since the trial court did not specify which of its findings it relied upon in imposing maximum and consecutive sentences, we must reverse and remand this matter to the trial court for further action consistent with this opinion.

September 11, 2004 in Blakely in the States, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Wednesday, September 08, 2004

Major Blakely ruling in Oregon

I previously noted here a newspaper article in which a state defense lawyer called Blakely's implications for Oregon state sentencing "absolutely enormous." Showing yet again how insightful defense lawyers can be, today in State v. Sawatzky, No. 0003-32189 (Or. Ct. App. Sept. 8, 2004), an Oregon Court of Appeals concluded that under its state sentencing laws "upward departure sentences violate the Sixth Amendment to the United States Constitution under the rationale set forth in Blakely."

Sawatzky is a great read in part because it provides a fine summary of Oregon's sentencing guidelines scheme and in part because it articulates the holding in Blakely in this interesting way:

Blakely makes it clear ... that Sixth Amendment analysis under Apprendi is not dependent on legislative intent. That is, the Court did not view as relevant that the Washington legislature, in enacting the sentencing guidelines, intended that courts rather than juries would act as finders of facts that justify "exceptional sentences," even though the Washington guidelines, like the Oregon guidelines, leave no doubt that that was the legislative intent. The Court, in fact, rejected the notion that legislative labeling of "elements" to be found by a jury and "sentencing factors" to be found by a judge could provide the necessary distinction required by the Sixth Amendment....

The Court has made clear in Blakely that a "statutory maximum" sentence for purposes of the Sixth Amendment is not something that, by mere legislative directive, can encompass a sentence enhancement that is based solely on judicial factfinding.

September 8, 2004 in Blakely Commentary and News, Blakely in the States, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Tuesday, September 07, 2004

Mile High Blakely

Though I have note yet seen a lower court opinion from Colorado grappling with Blakely's meaning for that state, this Denver Post article long ago blared in its headline that the Blakely "Ruling Could Nullify Sentences in Colorado." And now a thoughtful reader reports that the Colorado Supreme Court today announced its intention to examine whether Colorado's sentencing scheme can survive Blakely in the case of Lopez v. Colorado, No. 04SC150. According to the e-mail I received:

This case on which it granted certiorari deals with the mandatory aggravating factors of the defendant's being on parole, in prison, or an escapee from prison at the time of the crime. (In Colorado, the law sets a "presumptive sentencing range." The trial court may sentence the defendant to twice the maximum of this range if the court finds mandatory aggravating facts listed in the statute, or the court, in its discretion, finds other "extraordinary aggravating circumstances" that are not listed in the statute.)

While I ponder whether it is funny to describe the Colorado Supreme Court as the (Mile) High Court, you can read below the text of the court's order:
Whether Blakely v. Washington, 541 U.S. __, 124 S. Ct. 2531 (June 24, 2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000) prohibit the aggravation of petitioner's sentence because the statutory enhancement factors, defined in section 18-1-105(9)(a)(II) and section 18-1-105(9)(a)(V), were never charged in an information nor pled to by petitioner.

September 7, 2004 in Blakely Commentary and News, Blakely in the States, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack

The Blakely earthquake hits North Carolina

In what I believe are the first two cases from the North Carolina state courts dealing with Blakely, today in State v. Speight, 2004 WL 1960082, (N.C. App. Sept. 07, 2004) and State v. Allen, 2004 WL 1960333 (N.C. App. Sept. 07, 2004), two different appellate panels found, without much hesitation, that Blakely rendered unconstitutional aspects of North Carolina's state sentencing system.

In Speight, the court minced no words in identifying the Blakely problem and in rejecting the government's argument that a Blakely error should be deemed harmless:

Defendant received two consecutive aggravated sentences of a minimum of twenty and a maximum of twenty-four months for involuntary manslaughter and a consecutive aggravated sentence of twelve months for impaired driving. As the jury did not decide the aggravating factors considered by the trial court, defendant's Sixth Amendment right to a trial by jury was violated. See Blakely.

Nonetheless, the State argues that under a harmless error analysis, defendant's sentences should be upheld. However, as explained in State v. Allen, "[o]ur Supreme Court has definitively stated that when 'the [trial] judge [has] erred in a finding or findings in aggravation and imposed a sentence beyond the presumptive term, the case must be remanded for a new sentencing hearing.'" Accordingly, we grant defendant's motion for appropriate relief and remand this case to the trial court for resentencing consistent with the holding in Blakely.

In Allen, the court more fully discusses how the provision for imposing "aggravated sentences" in North Carolina "appears substantially similar to the portion of Washington's criminal sentencing statute analyzed in Blakely." Interestingly, according to the Allen court, state lawyers in North Carolina have been conceding after Blakely that aggravated range sentencings constitute a violation of a defendant's constitutional rights. (This apparently proper concession of Blakely's reach by North Carolina lawyers of course stands in sharp contrast to what we are seeing from federal lawyers in the federal courts, as discussed here and here).

Filling out its rejection of the state's harmless error claims, the Allen court explains:

Our Supreme Court has definitively stated that when "the [trial] judge [has] erred in a finding or findings in aggravation and imposed a sentence beyond the presumptive term, the case must be remanded for a new sentencing hearing." State v. Ahearn, 307 N.C. 584, 602 (1983). In the case sub judice, it is undisputed that the trial judge unilaterally found the existence of an aggravating factor and, thereupon, sentenced defendant in the aggravated range. The State's argument, when viewed in light of the ruling articulated in Ahearn, must fail, as this Court should properly remand the case for resentencing. Accordingly, we grant defendant's motion for appropriate relief and remand this case to the trial court for resentencing consistent with the holding in Blakely.

September 7, 2004 in Blakely Commentary and News, Blakely in the States, State Sentencing Guidelines | Permalink | Comments (5) | TrackBack

Monday, September 06, 2004

Blakely, federalism, retroactivity and pragmatism

As I noted before here, it is significant and telling that no states have filed briefs in support of the federal government's position in Booker and Fanfan. And upon re-reading the briefs seeking to distinguish the federal system from the rule in Blakely, I was struck particularly by the federalism ironies in this chapter of sentencing reform and also by how the SG's arguments may sell out the states on the important question of Blakely's retroactivity. Let me explain:

1. The federalism ironies. Thoughtful observers of modern sentencing reform — from the ABA in its Standards for Criminal Justice to leading academics (see, e.g., Michael Tonry, Sentencing Matters (1996), Richard Frase, Sentencing Guidelines in Minnesota, Other States, and the Federal Courts: A Twenty-Year Retrospective, 12 Fed. Sent. Rep. 69 (1999)) — consistently report that state sentencing reform efforts have generally been successful while federal efforts have not. In Professor Tonry's words, "Few outside the federal commission would disagree that the federal guidelines have been a disaster [while] state guidelines [have] turned out ... surprisingly well." Sentencing Matters at pp. 9-13.

Yet now the SG and USSC are arguing that the distinctive features of the federal system — e.g., that the federal guidelines are (mostly) written by a (mostly ineffectual) commission and that they are (extremely) complicated and require punishment for uncharged conduct — should exempt the federal guidelines from the constitutional rule articulated in Blakely. The first irony is that highly questionable legal distinctions are being made in an effort to "save" perhaps the only guideline system that does not deserve saving. The deeper federalism irony is that arguments for a "federal exemption" to the Blakely rule are being made to a Rehnquist Court that has sought to reinvigorate federalism concepts by exempting states from federal legal burdens.

2. The states' retroactivity problem. Inherent to the SG's argument that Blakely does not apply to the federal guidelines is the assertion that Blakely was just an application of the Apprendi rule. See SG Brief at 18 ("Blakely thus applied the rule of Apprendi"); see also USSC Brief at 18-19. In other words, to exempt the federal guidelines from Blakely, the Supreme Court would essentially have to hold that Blakely was not a new rule, just an application of the rule announced in Apprendi. But so holding would then seem to require states to apply the (not-new) Blakely rule to all convictions not yet final when Apprendi was decided in June 2000.

In other words, the argument the SG is making in an effort to "save" the current federal sentencing system (which, by most accounts, is not worth saving) could have the effect of destroying at least four years of past state sentencing outcomes. Following the SG's arguments to its logical conclusion entails that the argument for exempting the federal guidelines from Blakely is not pragmatic at all, since pragmatically speaking such a ruling will create many more headaches and problems for state sentencing systems than it might save for federal sentencing. Thus, despite my earlier suggestion here that the federal debate over Blakely is a dispute between principle and pragmatism, I now realize that both principle and pragmatism support the application of Blakely to the federal system.

September 6, 2004 in Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (5) | TrackBack

Saturday, September 04, 2004

Tennessee's functionality meets Blakely's formalism

In this post I focused on Ohio sentencing law to highlight that Blakely's formal rule is so consequential (and confusing) because functionality, not formalism, is the hallmark of many facets of sentencing reform. Another interesting example of these dynamics emerged from Tennessee this past week in State v. Bellamy, 2004 WL 1936384 (Tenn. Crim. App. Aug. 31, 2004), where the court was addressing the state's functional presumption for "alterntive sentencing" in its sentencing laws.

The majority's opinion in Bellamy actually avoided discussing what Blakely might mean for the state presumption for an alterntive sentence, though it did helpfully explain this part of Tennessee sentencing law:

In regards to alternative sentencing, Tennessee Code Annotated section 40-35-102(5) provides as follows: "In recognition that state prison capacities and the funds to build and maintain them are limited, convicted felons committing the most severe offenses, possessing criminal histories evincing a clear disregard for the laws and morals of society, and evincing failure of past efforts at rehabilitation shall be given first priority regarding sentencing involving incarceration." A defendant who does not fall within this class of offenders "and who is an especially mitigated offender or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable candidate for alternative sentencing in the absence of evidence to the contrary." Id. § 40-35-102(6).

Though the majority did not speak at all to how Blakely might impact the application of this provision by sentencing judges, Judge James Curtwood Witt concurring did so in this thoughtful way:
In my view, we must recognize the possibility that Blakely v. Washington, hampers a trial judge's authority to make the fact findings necessary to overcome the statutory presumption of favorable candidacy for alternative sentencing....

The defendant in the present case enjoyed the presumption of Code section 40-35-102(6), and it behooved the trial court, in imposing a sentence of confinement, to offset the presumption by finding any, or any combination, of the factual premises listed in section 40-35-103(1), such as, the need to protect society from an offender with a long history of criminal conduct or the ineffectiveness of prior non-confinement measures. See id. § 40-35- 103(1)(A)(C) (2003). That factual determination is in addition to the facts explicitly or implicitly established by the defendant's guilty plea....

[T]he High Court in Blakely did not speak in narrow terms that targeted merely the length of an accused's sentence; rather, it spoke in broad terms of the state's power to punish: "When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts 'which the law makes essential to the punishment,'... and the judge exceeds his proper authority." Id. (quoting 1 J. Bishop, Criminal Procedure, § 87, p. 55 (2d ed. 1872) (emphasis added). Thus, Blakely seems to have impact on Tennessee's scheme of presuming favorable candidacy for alternative sentencing because whether to confine or not confine is, in a general sense, an issue of punishment....

That said, we know that the Sixth Amendment's prohibition of increasing punishment beyond the "statutory maximum" based upon an additional judge-made finding does not apply to "the fact of a prior conviction." In the present case, the defendant's record of prior convictions is substantial. Although the pertinent factual premise for overcoming the presumption of favorable candidacy for alternative sentencing addresses prior "history of criminal conduct," a standard that does not necessarily limit consideration to conduct that resulted in convictions, the defendant does have an extensive record of prior convictions. For that reason, I believe that the trial judge could have properly based his confinement order on the record of prior convictions, and even if Blakely does apply to Code section 40-35-102(6)'s presumption, the court's use of sentencing factors other than prior criminal convictions would be harmless beyond a reasonable doubt.

September 4, 2004 in Blakely in the States, Criminal Sentences Alternatives, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Friday, September 03, 2004

Another interesting Ohio case

Yesterday in State v. Richards, 2004 Ohio 4633, 2004 Ohio App. LEXIS 4204 (Ohio App. Sept. 2, 2004), Judge James Sweeney in a dissent continued to spotlight Blakely issues in the application of Ohio's state sentencing laws. Recall that, as detailed here, Judge Sweeney and his colleague Judge Michael Corrigan had an interesting debate over the applicability and reach of Blakely in Ohio last week in State v. Taylor, 2004 WL 1900333, 2004-Ohio-4468 (Ohio App. Aug 26, 2004).

In Richards Judge Sweeney was simply calling for the defendant's sentence to be remanded for consideration of Blakely issues, but the case is interesting and noteworthy because it involved the imposition of a three-year sentence when the offense of conviction provided a statutory range of between one and five years. But, as Judge Sweeney correctly notes, under Ohio's statutory sentencing laws "the court could only deviate from the minimum sentence by making judicial findings beyond those either determined by a jury or stipulated to by the defendant." Specifically, in this case, the trial court imposed a sentence of three years rather than one year based on a finding that the "the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public." Ohio Revised Code § 2929.14(B).

I have discussed at length here how Ohio's laws governing the imposition of maximum sentences raise deep jurisprudential issues about the meaning and reach of Blakely. Judge Sweeney's dissenting opinion in Richards expressly highlights — and the majority's opinion in Richards implicitly rejects — that the same tough Blakely issues arise whenever an Ohio judge imposes a sentence above the statutory minimum.

Though I do not think these issues have yet come before the Ohio Supreme Court, it is only a matter of time before Buckeye Justices will need to start grappling with Blakely's meaning for Buckeye justice.

September 3, 2004 in Blakely Commentary and News, Blakely in the States, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Friday, August 27, 2004

Blakely's impact in Ohio

As noted here, yesterday's Ohio appellate court ruling in State v. Taylor, 2004 WL 1900333, 2004-Ohio-4468 (Ohio App. Aug 26, 2004), is noteworthy and interesting for non-Blakely reasons. But it was the Blakely talk in the separate opinions of Judge James Sweeney and Judge Michael Corrigan that first caught my eye. Here are some highlights.

Judge Sweeney begins his concurring opinion in Taylor by noting that he is writing separately "to explain my position as to the resolution of the fourth assignment of error," which raised Blakely issues. Then, after reviewing the Blakely case, he explains:

In this case, the court could only impose the maximum penalty by making specific judicial findings beyond those either determined by a jury or stipulated to by the defendant. [FN1] Ohio law simply does not allow the trial court to impose maximum sentences (or certain other aspects of sentencing) in its discretion. Maximum sentences, consecutive sentences, and certain other sentences are reserved for offenders under certain and statutorily specified circumstances. Accordingly, we are required to review sentences de novo and not under the abuse of discretion standard. Thus, the maximum sentence is not within the "statutory range" of sentences that a trial court may impose in its sole discretion. Consequently, I believe an argument can be made that Ohio's sentencing law, in some respects and applications, is susceptible to the same constitutional violations that the U.S. Supreme Court discussed in Blakely.

FN1. The specific judicial findings being either that the offender committed the worst form of the offense or that he posed the greatest likelihood of committing future crimes. R.C. 2929.14(C). Although R.C. 2929.14(C) further allows for the imposition of maximum sentences "upon certain major drug offenders under division (D)(3) of this section, and upon certain repeat violent offenders in accordance with division (D)(2) of this section" that portion of the statute is not applicable in this case. I do not believe that Blakely affects the trial court's ability to consider other facts relative to sentencing, including the offender's age and criminal record among other factors contained in R.C. 2929.12. Nonetheless, the law does not allow the court to impose the maximum sentence based upon such facts in the absence of the findings required by R.C. 2929.14(C).

These statements alone make the Taylor decision quite interesing. But then Judge Michael Corrigan, concurring in judgment only in part and dissenting in part, gets his say. To begin, Judge Corrigan disputes the majority's (non-Blakely) holding, noted here, by asserting that the sentencing court properly "found that Taylor posed the greatest likelihood of reoffending, and it gave reasons in support of that finding based on Taylor's extensive criminal record, his age (22 years-old), and lack of remorse" justified a maximum sentence under Ohio law. He then turns to Blakely, explaining that though he is "loathe to make broad pronouncements about Blakely's applicability to the Ohio sentencing statutes, the concurring opinion demonstrates that the issue is now joined." Consequently, Judge Corrigan weighs in with these "initial thoughts":

For the most part, Blakely has no applicability to Ohio sentencing statutes. This is because Ohio uses definite sentencing within minimum and maximum ranges for particular classes of felonies as opposed to guidelines used in the state of Washington which set maximum ranges within particular types of offenses in a class of felonies. For example, in Ohio a first degree felony is punishable by three, four, five, six, seven, eight, nine or ten years in prison. Unlike Washington, Ohio's sentencing statutes do not prescribe a prison term based on a point system relating to the offender's conduct. The Ohio trial judge has the discretion to sentence anywhere within the range, subject to statutory findings for imposing the maximum sentence....

To the extent that Ohio uses sentence enhancements, I tend to believe Blakely is not a problem. Nearly all sentence enhancements used in Ohio are charged in the indictment; for example, gun specifications, repeat violent offender or major drug offender specifications. That being the case, the offender would either plead guilty to the specification or the jury would make a factual finding on the specification. And it bears noting that sexual predator issues do not involve "punishment" for purposes of double jeopardy, so hearings on the predator classification would not be an issue.

Likewise, Blakely should not be an issue for consecutive sentencing. The federal courts have consistently held that the imposition of consecutive sentences does not raise issues under the Sixth Amendment as long as the individual sentence for each count does not exceed the maximum....

As for the findings required to impose the maximum sentence in a given case, those findings do not entail additional fact-finding in the sense that would implicate Blakely.... A finding that the offender committed the worst form of the offense would be based purely on the facts adduced at trial or pleaded to in the indictment. Recidivism factors like prior offenses need not be established by the jury, as the Supreme Court has specifically stated that prior convictions are not subject to the jury trial rule (there being obvious Fifth Amendment problems with the use of prior convictions when the accused does not testify).

Consequently, I believe the concurring opinion's statement that "the court could only impose the maximum sentence by making judicial findings beyond those either determined or stipulated to by the defendant" to be only partially correct. As Blakely makes clear, the sentencing court may still rule on those facts that are deemed important to the exercise of sentencing discretion. Sometimes, those facts do not present themselves until sentencing; for example, the vindictive offender who verbally or physically assaults the court during sentencing may show a lack of remorse or that he is a danger to the public. Those are factors that may be considered when imposing the maximum sentence, and they do not have to be determined by a jury. Other admitted factors, like an offender's age, may be stipulated.

The offender's age, extensive criminal record and lack of remorse as shown in this case are demonstrable facts that the judge could validly consider without violating Blakely. I would therefore find that the court did not err by imposing the maximum sentence.

Whew... I sure am glad that Judge Corrigan is "loathe to make broad pronouncements about Blakely's applicability to the Ohio sentencing statutes" or else I might have run out of room on this blog for his "initial thoughts."

I hope to post more about Blakely and my home state when I have time this weekend to fully process Judge Corrigan's interesting (and debatable) "initial thoughts" about Blakely's impact in Ohio. Also relevant to this discussion will be another decision from the same Ohio appellate court, State v. Quinones, 2004 WL 1903250, 2004-Ohio-4485 (Ohio App. Aug. 26, 2004) which was also handed down yesterday.

August 27, 2004 in Blakely Commentary and News, Blakely in the States, State Sentencing Guidelines | Permalink | Comments (4) | TrackBack

Tuesday, August 24, 2004

Dollars and Sentencing

Many readers likely know that the paths of federal and state sentencing reforms have diverged in part because of economics. Even though the federal corrections system is the biggest in the country, state expenditures on corrections consume a much bigger portion of states' overall budgets. Thus, as highlighted by this terrific report entitled "Changing Fortunes or Changing Attitudes?: Sentencing and Corrections Reforms in 2003" produced earlier this year by the folks at the Vera Institute's State Sentencing and Corrections Program, states struggling with the "third straight year of severe economic crisis" took a series of "steps to lessen sentences and otherwise modify sentencing and corrections policy during the 2003 legislative sessions."

This recent article discussing a planned review of state sentencing laws and practices in Oregon highlights that, when it comes to sentencing reform, the almighty dollar might still be more powerful than the almighty Blakely. Though Oregon state sentencing laws apparently have big Blakely problems (details here), the article reveals that the public debate over Oregon sentencing reforms is about sentencing costs not sentencing procedures. Here's hoping that, on the playing field of sentencing, Oregon can get its ducks in a row.

August 24, 2004 in Blakely in the States, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Tuesday, August 17, 2004

Blakely news from California

One of my exciting Blakely questions for week (details here) was whether there would be any big Blakely news from the states. Though I am not sure the California intermediate appellate court decision in People v. Vonner, 2004 WL 1813998 (Cal.App. 2 Dist. Aug. 16, 2004), qualifies as big news, it is worth noting. Consider the opinion's first paragraph:

Contrary to the numerous contentions in the deluge of supplemental briefs now being filed in the California Appellate Courts, it is not at all clear that the United States Supreme Court opinion in Blakely v. Washington has sounded the death knell for California sentencing laws. It remains to be seen whether the Determinate Sentencing Law has been bruised, battered, or born into a better world. Here we only conclude that Blakely does not impact a sentencing court's imposition of a full consecutive sentence for an enumerated violent sex offense. (Pen.Code, § 667.6. subd. (c).)

Here's how the court in Vonner explains the defendant's Blakely/Apprendi argument and the court's rejection of that argument:

Citing Blakely, appellant contends that the trial court erred in imposing a full consecutive six year term on count 2 (forcible lewd conduct) after selecting the midterm six year sentence for lewd act on a child committed several weeks before count 2.

Appellant asserts that a consecutive sentence is tantamount to an Apprendi "enhancement." We disagree. [We have] explained that section 667.6 is an alternate sentencing scheme, not an enhancement. It does not increase the penalty beyond the prescribed statutory maximum. "Apprendi is relevant only where a judge-made factual determination increases the maximum statutory penalty for the particular crime...." (People v. Cleveland (2001) 87 Cal.App.4th 263, 271.) That did not happen here.

Here the guilty verdicts subjected appellant to consecutive sentencing which the trial court was authorized to impose. The sentence was not based on any "fact" that the trial court found. The decision was based on the guilty verdicts and the statutory discretion given to the trial court by the Legislature. Appellant received less than the prescribed statutory maximum. He could have received a 16 year sentence.

Assuming, arguendo, that Blakely has some application in this context, any assumed error is harmless beyond a reasonable doubt. The jury found appellant guilty of forcible lewd conduct and lewd conduct. Although not required, it is undisputed that the offenses were committed weeks apart. Partial reversal for some type of new trial on the question of consecutive sentences would not be authorized by law and would be an exaltation of form over substance. Moreover, we ask, what fact would the jury be instructed to find which could serve as a predicate to the imposition of consecutive sentences?

August 17, 2004 in Blakely Commentary and News, Blakely in the States, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Saturday, July 31, 2004

I'm going to Graceland...

Proving that Tennessee deserves the nickname "The Volunteer State," a friend from Tennessee was kind enough to volunteer some helpful information concerning that state's reaction to Blakely. As noted before, Tennessee's Governor has already created a Task Force on the Use of Enhancement Factors in Criminal Sentencing (background here), and I was pleased to learn that the Task Force seems to have a balanced membership, including many judges, prosecutors and defense attorneys (and three very well-regarded law professors as ex officio members). It also seems the Task Force has set a robust schedule and plans to have a report or a proposal before the end of this year.

The history of sentencing reform is Tennessee is quite dynamic, and the pre-Blakely story is well-told here. In 1985, the legislature created the Tennessee Sentencing Commission which helped produce the Tennessee Sentencing Reform Act. That Act became effective on November 1, 1989 and still governs Tennessee sentencing. But the Tennessee Sentencing Commission is no longer with us: the state's legislature abolished the Commission in 1995. And yet, Judge Barbara Haynes, who once served Chair of the Tennessee Sentencing Commission, is now serving a Chair of the Governor's Task Force and apparently others involve with the Task Force formerly were involved with the Tennessee Sentencing Commission.

Even before the Task Force gets started in earnest, official and unofficial voices are sharing wisdom about what Blakely means for Tennessee sentencing. Specifically, the Office of the Tennessee Attorney General has issued a fascinating four-page memorandum presenting "initial impressions ... as to Blakely's effects on Tennessee's statutory sentencing scheme." The memo speaks to a number of universally important topics, such as authority for utilizing sentencing juries, the impact of Blakely on consecutive sentencing, and retroactivity. Covering similar ground in a fuller way from a different perspective, attorney David L. Raybin has completed an article to be published the August 2004 issue of the Tennessee Bar Journal entitled "What is the Impact of Blakely v. Washington on Sentencing in Tennessee." I am pleased to be able to provide access to both these documents here:
Download tenn_ag_advice_to_das_7.8.08.pdf
Download what_is_the_impact_of_blakely_v. Washington on Sentencing in Tennessee.pdf

Now I wonder what Elvis (or even Paul Simon) would think about Blakely?

July 31, 2004 in Blakely Commentary and News, Blakely in the States, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, July 30, 2004

Will state sentencing commissions do better?

Because no state sentencing system is (yet) experiencing the turmoil now transpiring in the federal sentencing system (details here), it is understandable (and even perhaps defensible) that state sentencing commissions have not yet been active participants in the discussion of sentencing reforms after Blakely. Nevertheless, I visited today the home pages of most of the state sentencing commissions and was a bit troubled to find no mention of Blakely on any of the websites except Pennsylvania's (and the brief Pennsylvania discussion of Blakely is now a month old).

I was quite encouraged to see, however, on the website of the New Mexico Sentencing Commission that there are plans in place to discuss Blakely at the upcoming Conference of the National Association of Sentencing Commissions, which is taking place next month in Sante Fe. (For details, including information on how to get an affordable NASC T-shirt, click here.)

I was also pleased to see that the "NASC is setting up an internet page through the US Sentencing Commission for individual states to submit information, documents, recommendations, proposed legislation or reports related to their state's response to Blakely." Here is a link to that page, which currently has only limited information from Kansas, Michigan and Pennsylvania, but valuably seeks "to have each state provide information so it can serve as a clearinghouse of information on the states' responses."

Finally, according to my Blakely calender, at least one state sentencing commission is going to be speaking publicly soon: this Monday, I believe, marks the deadline that Minnesota Governor Tim Pawlenty set for a short-term report from the Minnesota Sentencing Guidelines Commissionon concerning his state's sentencing procedures in the wake of Blakely (background here). I am very eager to see what this well-regarded Commission is going to say (and perhaps not say) about Blakely.

July 30, 2004 in Blakely Commentary and News, Blakely in the States, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (4) | TrackBack

Wherefore art thou USSC?

A month ago, I was energized by the thought that the Blakely earthquake might provided a unique opportunity for sentencing commissions to play a leading role in reforming sentencing reform (background here). Though I suppose I can still hope, a month later the idea that the US Sentencing Commission would become a leader seems like wishful thinking.

According to the Acting Solicitor General, federal sentencing law is in a state of unprecedented turmoil (details here) in the wake of Blakely. Yet the only Blakely resource the US Sentencing Commission provides on its website is the (now quite dated) written testimony of Commissioners Steer and Sessions before the Senate Judiciary Committee. In that testimony, the Commissioners indicate that the USSC has been "work[ing] intensively with Congress, the Department of Justice, representatives of the federal judiciary, and other interested persons to analyze the impact of the Supreme Court’s decision and help guide the discussion concerning the future of the federal sentencing guidelines system." That sounds great, but I cannot resist trotting out a well-worn political slogan: "Where's the beef?"

The USSC surely is collecting lower court Blakely decisions concerning the federal guidelines; why hasn't the USSC made these decisions publically available in one official location?

The USSC likely has unique insights and opinions about which post-Blakely cases the Supreme Court ought to consider and how the "Questions Presented" ought to be cast; why hasn't the USSC filed an amicus brief with the Court addressing these critical matters?

The USSC likely is analyzing key data about the possible impact of Blakely on past, present and future federal sentences; why hasn't the USSC made any official statements about this important data (while avoiding questionable unofficial statements)?

I am confident that the USSC Commissioners and staff have been hard at work since Blakely was decided, but I am disappointed the USSC has not played a more public and effective role in the on-going dialogue about the future of federal sentencing. Because we are only in the midst of the first chapter of a very long story, there is still plenty of time for the USSC to shine. But it is hard to be encouraged by what we have seen so far, which prompts not just the question where is the USSC, but why?

July 30, 2004 in Blakely Commentary and News, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (5) | TrackBack

Thursday, July 22, 2004

Fascinating news from Tennessee

Apparently I was on to something when I said earlier that today was going be a big day for Blakely in the states. In addition to all the developments reported earlier today, I just found this breaking news report from Tennessee:

By Executive Order, Governor Phil Bredesen today named a panel of criminal justice officials charged with making recommendations to preserve the use of enhancement factors in Tennessee’s criminal sentencing laws, in light of [Blakely]. The Governor’s Task Force on the Use of Enhancement Factors in Criminal Sentencing will determine if a special session of the General Assembly is necessary to protect the Tennessee Criminal Sentencing Reform Act called into question by the ruling and will determine what legislation, if any, might be necessary, officials said.

The newspaper article linked above is worth a read, in part because it includes the full text of the Governor's executive order. It also details the composition of the TFUEFCS (I made that acronym up myself):

The 13-member Task Force on the Use of Enhancement Factors in Criminal Sentencing will consist of the Attorney General and Reporter or his designee, the Commissioner of the Department of Correction, the Chairman of the Board of Probation and Parole, as well as one member from each House of the Legislature, to be appointed by the Speakers. Eight additional members will include at least one each of the following groups: appellate judges, criminal trial judges, general sessions court judges, district attorneys, public defenders, criminal defense lawyers and victims of crimes. [COMMENT: What?? No law professors?? Geez, we get no respect.] The Governor shall appoint a Chair from among the members, who will appoint five (5) ex-officio, non-voting, members to serve in an advisory capacity. The Task Force will report to the Governor no later than August 27 on whether a special session of the Legislature is necessary to revise the state’s sentencing laws. The group is also charged with recommending legislation even if it’s determined a special session is not necessary. In that case, the panel will have until November 15 to recommend legislation for next year’s session of the Legislature.

July 22, 2004 in Blakely in the States, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

More state Blakely news in Minnesota and elsewhere

After Wednesday was a huge Blakely day in the federal system, it looks like today might be dominated by state news (and particularly by northern states starting with an M). As first reported here, the Minnesota Court of Appeals issued the state's first major Blakely ruling ealier this week in the course of overturning a sex offender's 40-year prison sentence. To quote Paul Harvey, here's "the rest of the story":

In State v. Whitley, the Minnesota Court of Appeals holds that the findings of fact under Minnesota's pattern sex-offender statute need now be proved to a jury beyond a reasonable doubt. As noted in the very helpful e-mail report to me about the case:

Interestingly, the Court indicates that Apprendi and a Minnesota Supreme Court case called Grossman, and not just Blakely, dictate this result. The remand instruction is cryptic, as Minnesota has no system of sentencing juries or anything of the sort (at least not yet).

In news from states not starting with an M, this well-done article from the Knoxville News-Sentinel reports on a Tennessee decision from an intermediate appellate court which reduce a defendant's sentencing by a year in a child abuse case following Blakely.

And, Marcia Oddi over at the Indiana Law Blog has noteworthy posts here and here about the likely impact of Blakely on Indiana state sentencing.

July 22, 2004 in Blakely in Appellate Courts, Blakely in the States, State Sentencing Guidelines | Permalink | Comments (2) | TrackBack

The Michigan Supreme Court speaks!!

We now have what I believe is the first state Supreme Court decision to expressly consider Blakely. Today in Michigan v. Claypool, the Michigan Supreme Court articulated the view (in footnote 14) that Michigan's guideline scheme operates in a manner that avoids Blakely problems:

Michigan ... has an indeterminate sentencing system in which the defendant is given a sentence with a minimum and a maximum. The maximum is not determined by the trial judge but is set by law. MCL 769.8. The minimum is based on guidelines ranges.... The trial judge sets the minimum but can never exceed the maximum (other than in the case of a habitual offender, which we need not consider because Blakely specifically excludes the fact of a previous conviction from its holding). Accordingly, the Michigan system is unaffected by the holding in Blakely that was designed to protect the defendant from a higher sentence based on facts not found by the jury in violation of the Sixth Amendment.

In a separate opinion concurring in part and dissenting in part, Chief Judge Corrigan suggests that Blakely matters in Michigan may not be so simple:
I agree with the majority that the recent United States Supreme Court decision in Blakely v Washington, does not invalidate Michigan’s indeterminate sentencing scheme as a whole. Nonetheless, the majority’s sweeping language regarding judicial powers to effect departures (not limited to downward departures) will invite challenges to Michigan’s scheme; it appears to conflict with principles set out in Blakely.

Here's the full opinion for your reading pleasure:
Download michigan_claypool_decision.pdf

There are additional opinions and issues of note in Claypool, which looks like a very interesting state guideline case wholly apart from its encounters with Blakely. Because I am not well versed on Michigan state law —indeed, there may be a clause in my Ohio State contract which legally forbids me from thinking too much about anything Michigan — perhaps readers more familiar with Michigan's sentencing scheme can provide some immediate commentary on this decision.

UPDATE: In this article discussing the Claypool decision, Jim Neuward, director of the State Appellate Defender Office, says "It's nowhere near as simple as the court thinks." said

July 22, 2004 in Blakely in Appellate Courts, Blakely in the States, State Sentencing Guidelines | Permalink | Comments (33) | TrackBack

Saturday, July 17, 2004

Blakely developments in Arizona

A few recent news articles suggest that Arizona will be an interesting state to watch for Blakely developments. First, this article highlights that in Arizona, defense attorneys "find themselves in rare agreement with prosecutors on one issue: there's no need for the Legislature to rush to change state law in response to a U.S. Supreme Court ruling that may affect the way Arizona sentences criminals." I highly recommend reading this entire article, which is rich with information about coping efforts and plans for Arizona state sentencing. Among the interesting tidbits:

Maricopa County Public Defender James Haas said the criminal justice system's response to the ruling so far varies, with some counties using plea agreements that have defendants waive the need for jury findings, some reluctance by judges to impose sentences beyond the presumptive terms and one judge reportedly declaring that the ruling doesn't apply to Arizona.

Also, there is apparently a healthy collaborative spirit as the system is thinking about long-term fixes:
[D]efense attorneys are reaching out to prosecutors, scheduling informal meetings in coming weeks. "We may not agree on what we're going to do but at least we ought to talk together."... However, it's likely that numerous sentencing issues stemming from the ruling will still have to be fought out in court - no matter what the Legislature does in response, Haas said. "Every time you talk to people you come up with new issues."

And to provide a ground level view of post-Blakely life in Arizona, here is an article describing Blakely's impact on a manslaughter prosecution of Lee Parulski. Here's an interesting snipit:

During Thursday's hearing, Jim Coil, the prosecutor, said that he offered three options to Mike Rollins, Parulski's attorney, after the Blakely ruling. Coil said Parulski could waive his Blakely rights; a new plea agreement in which Parulski would plead guilty to second-degree murder could be signed; or a jury could be called. Rollins said he rejected the waiver or a new plea agreement. He said calling a jury would be acceptable. However, there is no procedural mechanism under Arizona law to call a jury in a case involving a plea agrement.

July 17, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Blakely in the States, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, July 16, 2004

California dreaming...

I am planning on getting a good night of sleep tonight, and perhaps I'll be dreaming about the California Supreme Court's ability to get right to work on the Blakely issue. Here's my prior post discussing People v. Towne, the first case in which Blakely issues will be examined by the California Supreme Court.

At first, based on a read of the lower court opinion, it was hard to figure out whether Towne was going to present the Blakely issue cleanly. Helpfully, additional information --- particularly this supplemental letter containing points and authorities in support of the defendant's argument for a reversal of his sentence to the upper term --- suggests that Towne should be a very interesting and effective case for state consideration of Blakely. Also helpful and interesting is this article giving background on the case.

Finally, it is worth highlighting that the fine folks at the First District Appellate Project now have a host of additional California-specific briefs/petitions on their fine FDAP Blakely Page.

July 16, 2004 in Blakely in Appellate Courts, Blakely in the States, Purposes of Punishment and Sentencing, State Sentencing Guidelines | Permalink | Comments (3) | TrackBack

Thursday, July 15, 2004

Coast to Coast Blakely developments in the states

In addition to the decision by the California Supreme Court to tackle Blakely in a pending appeal, Blakely issues are start to crop up in other state appellate decisions around the country. Here are two interesting examples.

Florida: In the (hard to follow) case of Sigler v. Florida, 2004 Fla. App. LEXIS 10485 (4th Dist. July 14, 2004), a Florida intermediate appellate court explained that, before Apprendi and Blakely, the "Florida Supreme Court [had] construed [Florida code] section 924.34 to authorize appellate judges to make a finding of guilt as to each element of permissive lesser included offenses in place of a jury determination. See I.T. v. State, 694 So. 2d 720 (Fla. 1997)." The Sigler court then explains its view that:

[T]hese later decisions [of Apprendi and Blakely] make it clear beyond any doubt that section 924.34 as interpreted in I.T. is contrary to the Sixth Amendment when the previous jury determination cannot be deemed to have necessarily found defendant guilty as to every element of the permissive lesser included offense. That means that as for this circumstance we are expressly holding the statute invalid under the United States Constitution.
In other words, the Sigler court is finding a Sixth Amendment limit on appellate judge fact-finding as well as sentencing judge fact-finding.

Tennessee: Meanwhile, in Tennessee v. Fuller, 2004 Tenn. Crim. App. LEXIS 626 (July 13, 2004), the court frankly asserts that the "United States Supreme Court's recent opinion in Blakely v. Washington, 2004 U.S. LEXIS 4573 (2004), calls into question the continuing validity of our current sentencing scheme." Though the Fuller court then avoids finding a Blakely problem in the case at hand, it still seems noteworthy that the Tennessee courts already see problems with its sentencing schemes in light of Blakely.

July 15, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in the States, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (4) | TrackBack

Wednesday, July 14, 2004

Action by the Supreme Court (of California)

Showing how fast it can move, the Supreme Court of California today granted a petition for review in People v. Towne, as noted here, and in so doing stated:

In addition to the issue raised in the petition for review, the parties shall address the following issues: (1) Does Blakely v. Washington (June 24, 2004) __ U.S. __ [2004 WL 1402697] preclude a trial court from making the required findings on aggravating factors for an upper term sentence? (2) If so, what standard of review applies, and was the error in this case prejudicial?

My instinct is to praise the Supreme Court of California for taking on Blakely so quickly. However, it might be argued that the Supreme Court of California ought to let lower court hash through some of these issues a bit first. Moreover, as Jonathan Soglin over at Criminal Appeal discusses briefly, the factual setting and legal issues raised in People v. Towne make the case pretty complicated. The unpublished court of appeals decision below is primarily focused on whether the trial court "abused its discretion by imposing the upper term and doubling it after refusing to" strike a prior conviction (a discretion that the California Supreme Court found provided in state law in People v. Superior Court (Romero), 13 Cal.4th 497 (1996). However, in the decision's final paragraph, the lower court stated:
Additionally, the trial court did not abuse its discretion by imposing the upper term. Contrary to appellant’s claim, the jury’s necessary findings on the acquitted counts did not conflict with the court’s findings. The court was well aware of the jury’s findings, acknowledged the victim lied and observed that the jury had been able to weigh the evidence and make credibility findings in reaching its verdicts. Moreover, even if there had been error, it would have been harmless. “A single factor in aggravation will support imposition of an upper term. [Citation.] ‘When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.’ [Citation.]” (People v. Cruz (1995) 38 Cal.App.4th 427, 433-434.) [Footnote 3: Further, the trial court could have used as reasons that appellant had served prior prison terms, his prior performance on probation or parole was unsatisfactory and that he was on parole at the time of the current offense. (See People v. Steele (2000) 83 Cal.App.4th 212, 227.)]

I believe that it is this portion of the opinion that is prompting the Supreme Court of California Blakely question, but it would seem that there are a number of interwined issues concerning the operation of discretion and the impact of prior convictions in the decision to impose an "upper term sentence." Perhaps Californians (or others) can use the comments to discuss whether Towne can or likely will be a good case for the Californias courts to start clearing up emerging Blakely issues in California law.

July 14, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in the States, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (15) | TrackBack

End of day news and commentary

The Blakely news and corresponding media coverage is growing as everyone figures out how big this story is. The Wall Street Journal (which unfortunately does not provide content on-line without a subscription) may have on Wednesday another in its series of thoughtful articles about the Blakely fall out. In addition, here's a brief (and surely incomplete) run-down of other noteworthy Blakely news.

Federal Developments: this AP story reports that U.S. District Judge Stewart Dalzell (ED Pa.) sentenced Frederick Leach to a 15-year term in a drug case instead of the guideline recommended 30-year term citing Blakely; Martha Stewart's sentencing is scheduled for Friday though U.S. District Judge Miriam Goldman Cedarbaum has not yet ruled on Stewart's lawyers' request to declare the federal sentencing guidelines unconstitutional -- this thoughtful article details the strategic challenges Stewart faces in deciding whether to speak at the sentencing.
MORE: This article dicusses Blakely issues in a Virginia District Court; this article reports that U.S. District Judge Michael J. Reagan of SD Ill. has continued all his sentencings to September or October; this article reports that U.S. District Judge John Manos has concluded that "the Blakely case does not affect federal law"; and this article quotes Deb Phillips of the U.S. attorney's office in Nashville saying, ''Right now, [Blakely will] just be a blip.''

State Developments: according to this article, Tennessee Criminal Court Judge Rebecca Stern sentenced a man convicted of raping an 82-year-old woman to a minimum 25-year sentence on Monday and said her sentence was limited by the Blakely ruling; and according to this article, Washington State Superior Court Judge Richard Strophy reduced by 19 months the sentence of a convicted murderer Monday relying on Blakely.

Other Commentary: Jason Hernandez over at the Blakely Blog provides this thoughtful run-down of issues raised during today's Senate hearing; Professor Kyron Huigens over at Punishment Theory continues his analysis of the problems he has with Justice Breyer's metaethics.

My own two cents: I found the Senate hearing very heartening with its consistently thoughtful and balanced discussion of many tough issues and its hints that at least a few Senators might want to re-think some major elements of the existing federal sentencing scheme. In the debate over the current "chaos" and the need for a quick fix, I continue to think it is very signficant that the USSC asserts "that a majority of the cases sentenced under the federal guidelines do not receive sentencing enhancements that could potentially implicate Blakely." USSC Written Testimony at p.2 (emphasis added). Finally, since DOJ representative Willaim Mercer's suggested that the time for legislative action might be in August, I am fearful that DOJ, if it feels that judges are low-balling sentences post-Blakely, will return to the Hill later this summer to seek a pro-prosecution "fix."

July 14, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in Legislatures, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (71) | TrackBack

Tuesday, July 13, 2004

A means for Supreme Court (re)consideration

I knew I saved my old edition of Hart and Wechsler's The Federal Courts and The Federal System for a good reason. It makes for a great little read on the certification procedure employed yesterday by the Second Circuit. In my yellowed Third Edition at pp. 1836-40, the section concludes with this choice quote from Wright et al.: "The sooner [abolition of certification] is accomplished by statutory amendment, the better."

Meanwhile, I now have word of another development that calls for pulling out the history books. Today Professor Rory Little, new counsel for the State of Washington, has told me about the filing of an "Application for Extension of Time to File a Petition for Rehearing on Behalf of the Respondent State of Washington." In other words, the State of Washington has plans to seek Rehearing of the original Blakely decision, even though the US Supreme Court apparently has not substantively granted a merits rehearing petition in nearly 50 years.

I have attached at the bottom of this post a pdf version of the petition, and here's the key part of the substantive argument:

Washington candidly recognizes that rehearing in this matter is legitimately viewed by many as unlikely. However, we believe the case merits the fullest possible attention at this juncture. This Court seems certain to soon grant merits hearings to other jurisdictions on the validity of their own sentencing regimes under Apprendi and the reasoning in Blakely.... We do not believe that the State of Washington fairly should be compelled to suffer the first blow as other jurisdictions continue to argue the implications of this Court’s closely-decided cases in this area. Rather, Washington should be permitted to participate in what will apparently be the definitive re-argument of the issues.

In dialogue with me about this effort, Rory thinks the Court should ultimately grant rehearing of Blakely itself as a matter of "fair Federalism." The idea is based on the sensible notion that, perhaps quite soon, the High Court is going to have a major "Apprendi day" in which the first principles of Apprendi will be re-examined. Says Rory: "If they are going to allow every other jurisidiction to argue that their regimes are distinguishible, why should Washington State have been made to walk the plank (so to speak) alone? Perhaps no one will change their mind. But if one did, Washington will have suffered a very unfair blow. The next arguments will NOT be simply about 'are the guidelines constitutional under Blakely.' They will inevitably and ineluctably go quickly to 'what is the bedrock constitutional theory that is operating here?' Rehearing of the case that stimulated that path is not just appropriate, but fair."
Download extension_rehearing_petition.pdf

July 13, 2004 in Blakely in the States, Blakely in the Supreme Court, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

Can the Kansas system work for the feds?

Because it's late, readers will have to make up their own Wizard of Oz jokes as we consider the virtues of following the yellow brick road of sentencing reform to Kansas. The New York Times today has an article suggesting "Justices' Sentencing Ruling May Have Model in Kansas." In a similar vein, The National Association of Criminal Defense Lawyers' (NACDL) has sent a letter to Senators Hatch and Leahy (available here thanks to our friends at TalkLeft), in which it is suggested that the Kansas approach of having a bifurcated trial to allow jury consideration of sentencing enhancements is the best way to give meaning to the constitutional rights announced in Blakely. I'll be interested to hear if the Kansas approach gets discussed at any length during the Senate Judiciary Committee hearing later today.

July 13, 2004 in Blakely in Legislatures, Blakely in the States, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (2) | TrackBack

Sunday, July 11, 2004

Blakely's impact in the other Washington

With a big week ahead as the folks in Washington DC cogitate about how to deal with Blakely in the federal system, we should recall that it was the other Washington which got this whole Blakely ball rolling. And, proving the impact will be consequential there, too, here's an article from Washington state detailing a case of a "businessman who stole $215,000 from his ailing stepmother [who] will be released from prison about 2.5 years early" due to Blakely problems in the extraordinary sentence he originally received.

July 11, 2004 in Blakely in the States, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Deciphering Blakely for the states

The coming week -- with the Senate Judiciary Committee hearing on Blakely scheduled for Tuesday and additional federal court rulings sure to come and come fast -- will likely focus much attention on what Blakely means for federal sentencing. But what Blakely means for state sentencing systems is no less important (more than 90% of all criminal convictions are in state courts) and no less dynamic (state sentencing structures are interestingly diverse and will be impacted by Blakely in interestingly diverse ways).

Fortunately, we can be confident that there are a lot of fantastic projects and minds working on the state story. For example, the great folks at the Vera Institute of Justice's State Sentencing and Corrections Program have launched an initiative to assist state officials who are grappling with Blakely and its aftermath. As reported to me in an e-mail and detailed on its website:

SSC has already begun to provide advice, research, and other assistance to officials in states that are affected by the ruling. Later this summer, Vera will convene a major national meeting, providing a necessary forum for state officials to strategize together and learn from national experts in the sentencing field. Vera will also issue a series of publications designed to provide the information and resources policy makers need to craft short- and long-term response to Blakely.

In addition, I have heard that the great folks at Justice Strategies are also hard at work helping states make sense of Blakely. Justice Strategies has recently worked in conjunction with Families Against Mandatory Minimums on two great recent (pre-Blakely) reports about state sentencing developments -- a report about Arizona's sentencing laws avaliable here and a report about nationwide state sentencing developments available here. Both of these documents, and really everything produced by FAMM and Vera's SSC, should be required reading for everyone involved in sentencing reform.

July 11, 2004 in Blakely in the States, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Friday, July 02, 2004

Minnesota's a leader again

Not long after I suggest that the feds learn from the states, I see this report of how Minnesota is sensibly handling Blakely:

Minnesota Gov. Tim Pawlenty ordered a review of the state's sentencing procedures so they'll comply with a recent U.S. Supreme Court ruling on Friday. He said the court decision "appears to have major ramifications" for Minnesota's criminal justice system and asked the Sentencing Guidelines Commission to make both short-term and long-term recommendations for changes. The short-term recommendations will be due in 30 days.

Minnesota is rightly praised for leading the states in the development of sound guideline sentencing reforms --- see, e.g., Richard Frase, Sentencing Guidelines in Minnesota, Other States, and the Federal Courts: A Twenty-Year Retrospective, 12 Federal Sentencing Reporter 69 (1999) --- and it is nice to see Minnesota taking the lead again.

July 2, 2004 in Blakely in the States, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, June 27, 2004

The Scope of Blakely's Impact

In a thoughtful piece quoting all the right folks, this New York Times article starts to guess at the number of criminal cases which may be affected by the Blakely decision. The article quotes Justice O'Connor's estimate from her Blakely dissent that 270,000 federal sentences over the last four year may be impacted; it also reports that John Kramer, a former executive director of the Pennsylvania Commission on Sentencing, has estimated that the decision could affect almost 90,000 state cases in the same period. In my view, the numbers discussed in the article are both understated and overstated.

The numbers are understated because they focus only on traditional sentencing cases. Based on broad and bold language in the majority's opinion, defendants and their lawyers may have grounds to argue that the principles and new mandates of Blakely extend to, and require modifications of, other parts of the criminal justice system in which judges make factual findings. The decision in Apprendi rippled in this way through some unexpected parts of the criminal justice system, although lower courts typically gave Apprendi a narrow reading in order to limit is ultimate impact. Lower courts may likewise try to read Blakely narrowly, but that will take some more work.

The numbers are overstated because it is extremely unlikely that every --- or even most --- previously sentenced defendants with viable Blakely claims will challenge previously imposed sentences. Some defendants with viable Blakely claims may have already completed or be close to completion of their sentence; many other defendants will not know they have a viable claim or will not be able to secure a lawyer to pursue a collateral appeal.

In the end, though, no matter how you add up the numbers, everyone is going to be busy with Blakely for quite some time.

June 27, 2004 in Blakely Commentary and News, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (2) | TrackBack

Saturday, June 26, 2004

What happens now after Blakely?

I am extremely curious --- and would be eager to hear from prosecutors, defense atorneys or judges --- how sentencings are being handled after Blakely in federal courts or in states with guideline structures. Is everything on hold until further rulings? Are sentencings going forward with efforts to comply with Blakely?

Relatedly, I am extremely curious --- and would be eager to hear from commissioners and staffers --- about the discussions and debates taking place in sentencing commissions about how to responded to Blakely.

Here and here and here are links to a few new stories which suggest that a lot of head scratching is going on.

June 26, 2004 in Blakely Commentary and News, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (5) | TrackBack

Friday, June 25, 2004

Sentencing Guidelines are dead! Long live Sentencing Guidelines!

The Supreme Court's decision in Blakely seems to mean that the standard operating procedures for most sentencing guideline systems --- including those of the federal sentencing guidelines --- are no longer constitutionally sound. But, despite Justice O'Connor's ominous statement that "[o]ver 20 years of sentencing reform are all but lost," I do not think the only real options are to return to the dark ages of unfettered judicial sentencing discretion or intricate systems of determinate sentencing that prosecutors essentially control through plea bargaining. Rather, I think it is quite possible to build a sound and sensible structured sentencing system that accords with that new constitutional requirements of Blakely (whatever they are) and that also achieves many of the important policy goals pursued through modern guideline reform efforts.

How? A system of relatively simple offense guidelines --- starting with a modified charge-offense approach and adding only a few very basic and general categories of aggravators (which would be subject to the Blakely rule) --- could be both workable and effective. And jurisdictions worried that their current guideline systems have been hit with a Blakely wrecking ball could quickly recast their systems along these lines, but only if their sentencing commissions take a bold and active leadership role in this post-Blakely world. I am very eager to see if, and how, sentencing commissions step up to the plate. They have never been needed more than now.

To paraphrase the dramatic voice-over from the TV classic The Six Million Dollar Man:

We can rebuild [the guidelines]. We have the technology. We have the capability to make the world's first [constitutional guidelines]... Better than [they were] before. Better . . . stronger . . . [fairer].

June 25, 2004 in Blakely Commentary and News, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack

Monday, June 21, 2004

Sentencing in Alabama

For another interesting and important document concerning state sentencing systems, here is the recently released 2004 Annual Report of Alabama Sentencing Commission, which outlines the progress that has been made toward a reformed sentencing system for Alabama, the current state of Alabama's criminal justice system, and the recommendations of the Commission for further improvements.

As the report details, the Alabama Sentencing Commission is urging the Alabama Legislature to approve the Commission’s Sentencing Standards, which are a set of voluntary sentencing guidelines. In advocating for these Sentencing Standards, the Alabama Sentencing Commission tellingly states:

We believe everyone will recognize the value of the voluntary standards and realize that they are nothing like the federal guidelines or other state mandatory sentencing guidelines. Instead, they will preserve judicial discretion and promote sentencing uniformity. Moreover, these standards are the first step toward truth-in-sentencing and more informed sentences.

June 21, 2004 in Criminal Sentences Alternatives, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (39)

Sunday, June 20, 2004

Sentencing in Oklahoma

Continuing the effort to spotlight interesting research and policy analysis in state sentencing systems, here are a few very interesing documents coming from Oklahoma earlier this year. The Oklahoma Sentencing
Commission's Report to the Oklahoma Legislature of Statewide Felony Sentencing in 2002
is an impressive document not only because of its comprehensive review of Oklahoma state sentencing data, but also because it reports information through a series of compelling charts and graphs. And the Oklahoma Sentencing Commission Recommendations to the Legislature about Felony Sentencing is an impressive document not only because of its detailed and precise findings on key sentencing issues, but also because it makes a number of direct and provoctive recommendations for improving sentencing law and practice in Oklahoma.

June 20, 2004 in Race, Class, and Gender, State Sentencing Guidelines | Permalink | Comments (26)

Saturday, June 19, 2004

Disparity Study from Alaska

There is an amazing amount of amazing research on state criminal justice and sentencing systems which get little national attention. In a series of posts, I hope to highlight some of this research. And it seems only appropriate to start at the top --- with a stunningly comprehensive report produced by the Alaska Judicial Council. Upon a recommendation from the Alaska Supreme Court Advisory Committee on Fairness and Access, the Judicial Council compile data on Alaska felony cases. As documented in a full report of stunning proportions (over 350 pages!), the Council reviewed predisposition incarceration, charge reductions, case dismissals, sentencing, post-disposition incarceration and total time incarcerated. In a comprehensive executive summary (which runs 41 pages!), the Council highlights that it found evidence that Alaska's criminal justice system was generally even-handed, but if did find some disparities by ethnicity, type of attorney, gender and rural location. The full report includes descriptive data about the court process for cases filed as felonies in 1999, and a detailed description of the multivariate analysis, findings and recommendations.

June 19, 2004 in Race, Class, and Gender, State Sentencing Guidelines | Permalink | Comments (3)

Monday, June 07, 2004

Mandatories in Arizona

The non-profit group Families Against Mandatory Minimums, which was founded in 1991 to challenge inflexible and excessive penalties required by mandatory sentencing laws, has recently produced this new report on the impact of Arizona's mandatory sentencing laws. According to FAMM, the report finds that Arizona's rigid mandatory sentencing laws fuel prison overcrowding crisis, fill prisons with non-violent substance abusers and cost millions while doing little to enhance public safety.

June 7, 2004 in Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (4)