« Pragmatism and Blakely's retroactivity | Main | The 4th Circuit Speaks!! »

September 8, 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 at 04:34 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Major Blakely ruling in Oregon:


Sawatzky is also interesting because it says in the final paragraph: "Guidelines departure sentences, which require judicial findings of fact and are not, under the current scheme, based on facts found by the jury, do not comport with the Sixth Amendment to the United States Constitution."

So do downward departure sentences also offend Blakely? No factors that would have moved the sentence downward appear to be involved, so maybe not.

But this is going to be the state equivalent of the federal severability question. If the upward departures based on judge-found facts are unconstitutional, what to do with downward departures? In most cases, it is not going to be hard to conclude that the state legislatures involved did not intend a one-sided scale. So is it going to be presumptives for everybody?

Posted by: Michael Ausbrook | Sep 8, 2004 6:32:30 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB