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July 27, 2004

The State of Washington Speaks (to SCOTUS)!!

As reported here a few weeks ago, the state of Washington has decided to petition the Supreme Court to rehear Blakely. I have now received a copy of the petition, which is here attached:
Download blakely_petition_for_rehearing.pdf

Here are the main argument points:

I. The Historical Evidence the Court Has Relied On to Interpret the Meaning of the Fifth and Sixth Amendments is Inaccurate and Incomplete

II. Because this Court Will Soon Again Hear Arguments About Apprendi, Fairness to the State of Washington Supports Reargument in this Case

UPDATE: Washington's petition is a great read, which makes a number of interesting points in interesting ways. It contends, for example, (1) that at least 18 states may be adversely impacted by the Blakely holding; (2) that "the Framers themselves were progressive sentencing reformers, making it even harder to imagine that they would have thought unconstitutional the progressive 'guided discretion' sentencing reforms of the past 25 years"; (3) that since Almendarez-Torres "the law of criminal sentencing in the United States has been in turmoil. Six years later – and four weeks after this court’s June 24 opinion – the situation is no better. Unprecedented turmoil and uncertainty in theory and in practice reign." Great stuff!

July 27, 2004 at 12:52 PM | Permalink


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The petition is certainly an interesting read, and policy considerations are highlighted in a fascinating way. Specifically, I think the petition makes clear that mandatory minimums and empirically arbitrary sentencing is a likely result of this decision as it stands. However, it simply fails to address what I think is among the most central aspects of both Apprendi and Blakely. Namely, all facts for the sentence must be proved beyond a reasonable doubt, and likely within the confines of the general rules of evidence, i.e., prohibition on hearsay, inter alia. The point that the Framers approved of discretionary sentencing under a ceiling (or within a range as Washington views it) only argues that progressive sentencing reform to eliminate arbitrariness and equalize sentences in a proportional way within a legal system was not unknown to them. It does not dispel the notion that I think will still find support within the Five Justices of the Blakely majority that the Framers thought the judges' sentencing discretion under the ceiling was guided only by facts proved (to a jury) beyond a reasonable doubt and by evidence admissible at a trial under common law rules.

Posted by: Erik Newton | Jul 27, 2004 3:15:37 PM

The notion that "judges' sentencing discretion under the ceiling was guided only by facts proved to a jury" does not need to be dispelled. It needs to be supported. The fact of silence demonstrates that in the then existing range systems around 1790, this (proving sentencing factors to juries) was not going on. Because where the defendant was sentenced within the range required a reason on the record (see Pet. n. 4 "shall be the duty of circuit courts ... to cause the facts on which they found their sentence or decree, fully to appear on the record"), the fact that there is no evidence that these facts/reasons were found by jury is significant. And was overlooked.

Posted by: Teresa Chen | Jul 27, 2004 7:26:32 PM

The historical argument submitted on behalf of the State of Washington is interesting and seems to be a persuasive basis for the State's request for re-hearing --- assuming the full historical account supports the State's characterization of the history of indeterminate sentencing. But, doesn't the State's asserted concern with "long-term ... adverse consequences" for criminal defendants (Rehearing Petition, at 9) seem a little disingenuous? In my 13+ years as a defense attorney, I have not encounterd that many prosecutors who are particularly concerned about long-term adverse consequences for criminal defendants.

Posted by: Victor Haltom | Jul 27, 2004 11:35:46 PM

The Court can reasonably infer that the judge sentencing for aggravated assault must merely decide whether the aggravating facts were proved to a jury beyond a reasonable doubt. I still see no evidence to the contrary, and the Court said as much in Footnote 6 of Blakely. This methodology is consistent with that used to determine whether issues were decided for purposes of collateral estoppel when there was a general verdict. It is not unheard of; in fact, it has indisputably been in use in preclusion cases, including those dealing with a criminal verdict. What “historical evidence” is there that this method was not presumed then, rather the method of Washington state, et alia, that the facts to be “noted on the record” could be found by a preponderance of the evidence, by the judge, who was permitted to rely on “evidence” that would be inadmissible at trial?

Posted by: Erik Newton | Jul 28, 2004 11:27:56 AM

The question has been posed: are prosecutors being "disingenuous" when they argue that the effects of Blakely will be bad for defendants in the long term? Washington's position is not an original argument, but taken straight from academia.

It appears four responses to Blakely have been posed: (1) increase mandatory minima, (2) make guidelines voluntary, not presumptive, (3) (supersize/obliterate/raise to the statutory maximum) the top end of the guidelines range, and (4) charge aggravating factors.

The second and third options mean, at least in Washington, the end of transparency and reviewability. Defendants will know with less certainty what sentence they can expect from a plea. Instead having a 95% certainty of receiving a sentence between 49-53 months, they can have no confidence about where they may be sentenced in a range of 49-120 months. And a defendant will no longer be able to question whether a 90 month sentence was arbitrary.

The last option seems to be disfavored by many legislatures. [In Washington, for decades before the guidelines came into existence, the maximum penalty for a class B felony had been ten years. Reform created guidelines and demanded transparency. In requiring transparency, the legislature never intended to create submaxima.] The negative effects for defendants of this option is that they will end up (1) pleading to factors or (2) waiving their Blakely rights or (3) going to trial where it is possible the prosecutor may be able to present prejudicial sentencing factors at the guilt phase. While some minimize the likelihood of these negative effects, they are yet to be litigated and confidence on both sides is high.

Understand that the state's argument regards effects in Washington. We are not comparing the situation of defendants before and after Blakely in the federal system, but in the Washington system.

While Washington shares the mechanism of transparency/reviewability with the federal guidelines, it does not share the common criticisms. In Washington, a finding of a factor does not MANDATE departure or create a new box limiting the judge's discretion. Quite the opposite, it increases the judge's discretion. Washington has few and reasonable mandatory minima. And in Washington the judge cannot depart upward from the standard range for a reason that would in effect be sentencing for a different or greater offense.

From this comparison, it must be clear that complaints about the federal guidelines have nothing to do with the particular mechanism struck down (the transparency mechanism). Note too that critics of the federal guidelines, J.s Kennedy and Rehnquist, were in the Blakely dissent. If the target was the federal guidelines, then Washington was an innocent bystander.

Posted by: Teresa Chen | Jul 28, 2004 1:48:16 PM

In Washington, disputed facts supporting an upward departure are held to the normal evidentiary rules. See RCW 9.94A.530(2). The question of the burden of proof is tied to whether or not the fact is an element or not.

I'm not sure I follow Mr. Newton's discussion: the sentencing judge can decide whether sufficient evidence was presented to prove a sentencing factor to a jury beyond reasonable doubt? Sounds like a harmless error argument to be used on appeal, but not a practice to be used at the trial court. I think Professor Little's reasoning stands: if sentencing courts were submitting their reasons to juries for ratification, you would think there would be some evidence of it.

Posted by: Teresa Chen | Jul 28, 2004 1:56:41 PM

In Washington, disputed facts supporting an upward departure are held to the normal evidentiary rules.

Posted by: Robe de Soirée 2013 | Dec 13, 2012 1:30:23 AM

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