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September 6, 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 at 12:30 PM | Permalink


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1. The USSG. I have come to the conclusion that whatever the more or less esoteric arguments there are to be made about Blakely's applicability vel non to the USSG, the USSG are toast. Everyone, including me, has ignored the remand for reconsideration in light of Blakely that the Supremes issued on 6/28 in State v. Dilts, a case of the Oregon Supreme Court--it can be found here:


The distinctions between Washington's sentencing scheme and the USSG that people have tried to make are more or less worth taking into account. I can find no important distinction for Blakely purposes, however, between the Oregon guidelines and the USSG in the way the two operate. The only distinction in their source seems to be that though originally adopted as administrative rules, the Oregon guidelines were then "adopted" by the legislature and have the force of statutory law--says the Oregon Supreme Court. Unless the USSG survive Blakely because of their peculiar "unadopted" status, they're done-for.

It is interesting that the SG spends some time in his Booker-Fanfan brief trying to distinguish the Washington scheme from the USSG while Dilts is not even mentioned.

1.A The Lower Courts. It was for the first time in Booker that I encountered the rule that the Supreme Court cannot / does not overrule its own cases by implication. In reading over the cases relied upon by the SG in his Booker-Fanfan brief, I also encountered Witte v US--to be found here:


Witte conspires to distribute cocaine in a sting and is let go. Witte conspires to distribute marijuana and is nabbed. In the marijuana prosecution, Witte's sentence is jacked for the relevant conduct in the cocaine conspiracy. Witte is then prosecuted for the cocaine conspiracy and raises a double jeopardy claim that he has already been punished for the cocaine conspiracy when it entered the marijuana sentence as relevant conduct. The Court rejected the claim.

There is *no* way to square Blakely-Ring-Apprendi with Witte if Blakely applies to the USSG. If the relevant conduct of the first cocaine conspiracy was the functional equivalent of an element, then the subsequent prosecution for the cocaine conspiracy almost certainly would fail the Blockburger test. And this is a much clearer conflict than in Edwards or Harris. If the rule is as stated in Booker and Pineiro, I am quite surprised that (some of) the lower courts have been so quick to apply Blakely to the USSG.

2. Retroactivity. I have been reading the cases relied upon by the SG in his Booker-Fanfan brief. Footnote 6 in Justice Stevens's dissent in Watts (1997) sheds considerable light, I think, on whether Blakely merely applied Apprendi or changed it:

"I recognize that the shift from one Guideline range to a higher range does not produce a sentence beyond the statutory maximum. It does, however, mandate a sentence that is above the maximum that the judge would have had the legal authority to impose absent consideration of the 'relevant conduct.'"

In light of Justice Stevens's understanding of "statutory maximum" in 1997, I think it is going to be hard to argue that Blakely didn't at least "clarify" Apprendi's "statutory maximum." Apprendi, after all, did involve two separate statutes, with one statute establishing a "statutory maximum" higher than the other. Put that together with the rejection of Apprendi's applicability to the USSG by every circuit, and I think the States are going to be safe from the retroactivity to Apprendi.

It should perhaps also be noted that the application of Blakely back to Apprendi would end up not with a flood of litigation in state courts. Most potential claimants to post-conviction relief will be out of luck procedurally under state rules. Because a retroactive Blakely / Apprendi post-conviction claim is so unlikely to be available in state court, many will be able to go straight to federal court with original or successive 2254 petitions within the year, at least, after the Supreme Court declares Blakely's retroactivity to Apprendi. (Because habeas really is about how many angels can dance on the head of a pin, this is not so much a firm conclusion on my part as a best guess. But so is everything else in the post-Blakely pre-Booker-Fanfan universe.)

Posted by: Micha | Sep 6, 2004 6:00:07 PM

I meant to say something about principle and pragmatism. What I meant to say is that in view of Witte and the rule that the Supreme Court cannot / does not overrule its own cases by implication, the rush by some of the lower courts to apply Blakely to the USSG "on principal" may really be an expression of dislike for the USSG and a sort of pragmatism: taking the first best chance. It would not be the first time that the explicit appeal to "principle" has been used to conceal other agendas including, but not limited to, the pragmatic.

Posted by: Michael Ausbrook | Sep 6, 2004 6:40:15 PM

The supposed "state retroactivity problem" is a two-edged sword. Yes, if Blakely is just a gloss on Apprendi, the argument for retroactivity is stronget; but at the same time, the argument for waiver is stronger (assuming defense counsel didn't mention Apprendi at sentencing, as is almost invariably the case). At least under California law, the defendant's rights under some unpredictable future appellate decision are not waived by failure to object. In this light, however, Blakely is foreseeable, and hence waivable.

Of course, even assuming Blakely was foreseeable, there is the argument that the right to trial by jury can't be forfeited by silence alone, but must be knowingly, intelligently and voluntarily waived.

Posted by: VaneWimsey | Sep 7, 2004 12:07:03 PM

My thanks to all posters on state retroactivity - I just filed a brief using all points and issues raised , supported by caselaw of course, to argue for retro app of Blakely in post-conviction actions in Colorado. I really wanted to use the "epistemological slap in the face" quote, but feared that would be plagerism. After writing for 3 days, I am fully convinced that Blakely stands by itself with Apprendi, not as a subset, and that to erect an artifical barrier of 2000 for review of sentences is unacceptable constitutionally. And that Teague does not apply. Let's see what sticks in the courts!

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