Spanning the States

Though there has not been huge Blakely news from the states recently, many small state stories continue to gurgle. Ron Wright, who has my great thanks for a wonderful job of guest-blogging last week, has relayed to me some of these stories upon his return from the National Association of Sentencing Commission's national meeting. I'll share Ron's many insights in a series of posts, through first let me note(small) news from the state courts.

In Minnesota this week there has been a spate of remands from the courts of appeals with instructions to the district court "to consider the application of Blakely." State v. Carlson, 2004 WL 1826141 (Minn. App. Aug. 17, 2004); see also State v. Rivera, 2004 WL 1826586 (Minn. App. Aug. 17, 2004); State v. Henderson, 2004 WL 1833936 (Minn. App. Aug. 17, 2004). Similarly, a recent Indiana court of appeals' decision, Wilkie v. State, 2004 WL 1843005 (Ind. App. Aug 18, 2004), dodges direct consideration of Blakely in a footnote which states that the court is "mindful" of Blakely, but "leave[s] for another day whether and, if so, to what extent Blakely may affect a trial court’s finding of aggravators to support an enhanced sentence and our review of that sentence under Indiana Appellate Rule 7(B)."

This thoughtful news story effectively canvasses state sentencing developments, and explains why state Blakely stories have been slower to develop:

Blakely may have a somewhat more limited impact on the functioning of state sentencing systems because judicial fact-finding is used to determine sentences in only a small fraction of state-level cases. Plus, the nature of state sentencing systems makes it easier for state courts to sidestep the ruling until more permanent statutory solutions are enacted.

The article goes on to note, however, that we might just be noticing a period of calm before a major legislative storm:

Blakely could have considerable state-level repercussions, especially in states with sentencing structures similar to Washington's.... Daniel Wilhelm, director of state sentencing and corrections programs at the Vera Institute of Justice ... said he "absolutely" expects statehouses to be flooded with legislation aimed at tailoring state sentencing guidelines to bring them into compliance with Blakely, when legislatures reconvene next year. "People seem to be waiting to act until the legislatures reconvene in the new year," Wilhelm said.

Finally, this article notes that Kansas might serve "as a model for other states now looking to reform their systems of presumptive sentencing guidelines" because it "adopted a bifurcated system after the state supreme court in 2001 invalidated its system of presumptive sentencing guidelines." Interestingly, Ron had this report about views expressed at the NASC meeting concerning the "Kansas solution":

From Ron about the Kansas system:
Various academics, judges, prosecutors, sentencing commissioners, and defense attorneys [at the NASC meeting] related some of the events in Kansas. Kansas holds special interest for Blakely purposes, because a 2001 Kansas Supreme Court case, State v. Gould, anticipated the outcome in Blakely and struck down the use of judicial factual findings to authorize an aggravated sentence. The Kansas legislature responded by passing a statute that provides for bifurcated jury proceedings to find facts that could authorize an aggravated range sentence. As a result, Kansas now has a two-year head start in the use of bifurcated jury proceedings.

There have been very few bifurcated jury proceedings held in the Kansas courts. In most counties, there have been none at all; statewide, there may have been less than a half dozen. When these proceedings do occur, attorneys and judges estimated that they only added one to three hours to the jury trial.

Why so few bifurcated jury proceedings in Kansas? One explanation could be the fear of the unknowns and the hassle that could accompany the new extended jury proceedings. Another is the power of parties to negotiate an aggravated sentence: defendants might happily accept an aggravated range sentence in exchange for a reduction in the charges filed.

But judges and attorneys from Kansas relied on several features of Kansas law for more specific explanations. They noted that consecutive sentences now take the place of aggravated sentences. Under Kansas law, the judge can impose consecutive sentences up to double the length of the most serious charge if there is a conviction for a second count. Prosecutors have begun more actively to charge additional counts, making possible these consecutive terms. For example, drug deals can also be charged as conspiracies and/or violations of the drug tax law. Judges and lawyers in Kansas also point out that the sentences for the most serious offenses are already pretty high in the presumptive range. Thus, for the most important cases, aggravated sentences may not appear to be that attractive to prosecutors.