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.
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.
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.
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.
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.
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].
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.
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.
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.
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.
Monday, May 31, 2004
The work of the ABA Kennedy Commission
U.S Supreme Court Justice Anthony Kennedy made headlines with this speech to the ABA in August 2003 about the need for major sentencing reforms in the federal system and across the country. For the past 9 months, the Commission that the ABA created to follow up on Justice Kennedy's exhortations have been conducting hearings and working on a report for presentation to the ABA at its upcoming annual meeting. The ABA has now provided on-line some of the testimony submitted during these hearing, and here you can access the November 2003 hearing materials and the February 2004 hearing materials.
Tuesday, May 18, 2004
Positive Developments in State Sentencing
The State Sentencing and Corrections Program at the Vera Institute is doing a lot of terrific work studying and advancing reforms in state sentencing systems. Its latest publication, Changing Fortunes or Changing Attitudes?: Sentencing and Corrections Reforms in 2003 surveys the most recent changes to sentencing and corrections policies and identifies the range of reforms being implemented. Using case studies of changes in four states, it also explores the role of changing attitudes toward crime and the possibility that the shifts in policy may outlast the budget crises that precipitated them. The report can be accessed here.