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October 5, 2004

Justice Kennedy's interesting interest

In the course of my Legal Affairs debate last week (available here), I lamented that the Blakely line of cases has a troublesome "binary" quality because some matters of relevance at sentencing are getting labeled "elements" (or the functional equivalent), in which case the full panoply of constitutional procedural rights are deemed fully applicable. But other matters, so-called "sentencing factors," garner the application of very few procedural rights. As I explained in the Debate Club:

Instead of relying on the Sixth Amendment to regulate sentencing procedures in this binary way, I might have preferred the Supreme Court to have developed more nuanced sentencing regulations through the Due Process Clause in order to give legislatures (and sentencing commissions) more flexibility to develop other procedures that would protect defendants' rights at sentencing.

Because of this view, I was quite intrigued when at oral argument Justice Kennedy seemed interested in exploring with Acting Solicitor General Paul Clement whether different sorts of facts might justify different sorts of treatment under the Blakely rule. Though the oral argument transcript (whenever it is available here) will reveal that this line of questioning did not go anywhere, I am somewhat hopeful that Justice Kennedy may try to develop a more nuanced approach to the (still developing) Blakely doctrine as the Justices start writing all this up.

Specifically, I would think it could be very beneficial for the Supreme Court to start working through a distinction between "offense facts" and "offender facts." It make a lot of sense to me — and even loosely fits with the existing Apprendi/Blakely jurisprudence — to require the government to prove to a jury beyond a reasonable doubt any and every fact relating to the offense, but to allow facts relating to the offender to be treated "administratively" under more lax procedures (see generally my post here distinguishing adversarial and administrative justice).

Helpfully, some courts and commentators have already started working through distinctions of this sort. Most notably, as explained in State v. Kaua, 72 P.3d 473 (Hawai'i 2003), the courts of Hawai'i have developed a jurisprudence in which so-called "intrinsic factors" are "required to be pled in the indictment and found by the jury" because they "are contemporaneous with, and enmeshed in, the statutory elements of the proscribed offense." Whereas, in contrast, so-called "extrinsic factors," which are factors "separable from the offense itself in that they involve consideration of collateral events or information" can be "found by the sentencing court after the defendant's adjudication of guilt at trial by the trier of fact." Similarly, in articles such as Kyron Huigens, Solving the Apprendi Puzzle, 90 Geo. L.J. 387 (2002), and David Yellen, Illusion, Illogic, and Injustice: Real Offense Sentencing and the Federal Sentencing Guidelines, 78 Minn. L. Rev. 403 (1993), and others, commentators have done important work exploring the nature and consequences of different sorts of facts for proof and procedure purposes.

Of course, as Hawai'ian jurisprudence reveals, a distinction between intrinsic and extrinsic facts is not self-defining. Or, slightly recast, there can be reasonable disputes over what qualifies as an offense fact and as an offender fact (e.g., role-in-the-offense might be arguably in either or both categories). Nevertheless, redefining Blakely's rule in terms of requiring jury trial and proof beyond a reasonable doubt not of all sentence-enhancing facts, but just of all sentence-enhancing "offense facts" I think advances the ball usefully. At the very least, I think an offense/offender distinction could be a more fruitful jurisprudential foray than the tail-wagging-dog jurisprudence that Justice Scalia regrets having lost in footnote 13 of his Blakely decision.

October 5, 2004 at 03:59 PM | Permalink


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I was indicted on 78 counts of false statements on income taxes. During my trial, 27 counts were dismissed. At sentencing however, 250additional tax returns were included in my sentence as relevant conduct. The additional returns were considered as extrinsic, and yet they were not. If one tax return prepared by someone from my office was considered intrinsic evidence, then ALL of the returns should have been intrinsic. If one tax return was considered an element of my offense, then shouldn't ALL tax returns prepared in this business, during this time be elements that were required to go before a grand jury and be listed in the indictment? These additional returns were labeled RELEVANT CONDUCT. This is the Justice Department's all-inclusive net that circumvents the Fifth Amendment's protection of Notice and Due Process. Is it possible that when the US Attorneys can't secure enough evidence that supports their allegations against a Defendant to present to the Grand Jury, they use RELEVANT CONDUCT? Is it constitutional that I be sentenced for counts that a jury heard dismissed? I have done my sentence, but I would like someone to respond, please.

Posted by: Allison Cain | Oct 6, 2004 1:06:38 PM

I'm an appellate defense attorney who has litigated several cases involving Apprendi-based sentencing challenges.

In my opinion, the offense/offender distinction that you propose regarding permissible judicial fact-finding is inconsistent with the analysis and holding of Apprendi. This sort of distinction is precisely the kind of analysis that the Court conducted in cases such as Almendarez-Torres and Jones, and expressly repudiated in Apprendi.

Before Apprendi, in attempting to evaluate whether a fact necessary to a sentencing increase should be treated as an "element" or "sentencing factor," the Court assessed, in the absence of evidence of legislative intent, whether the fact directly related to the actus reus or mens rea of the underlying crime, making it more "elemental," or whether the fact was more traditionally relevant to sentencing,which generally meant that it related more to the offender than to the offense. Apprendi abolished this analysis in favor of an approach that looked solely to whether the fact at issue was necessary to increase the defendant's sentence above the otherwise-authorized maximum term. Justice Stevens' reasoning, supported by his own as well as Justice Thomas' extensive analysis of early common law, established a "historic link between verdict and judgment:" early decisions and treatises required every fact essential to sentencing to be alleged in an indictment and proven to a jury at trial, including the fact quintessentially relating to the offender alone: his prior criminal record.

The reason that none of the members of the Apprendi/Blakely majority took up Justice Kennedy's line of questioning during the Booker/Fanfan oral argument, I submit, is that they recognized the incompatibility with Apprendi of any proposed distinction between facts related to the offense and those related to the offender.

Posted by: Andrew C. Fine | Oct 6, 2004 2:47:35 PM

I just visited your site and really enjoyed it very much. I am asking you for some help…I am in the Legal and Ethical Studies Program at The University of South Carolina. I am taking some online classes.. I want to pursue a law degree so I am taking these classes to see how I will pan out. I have an issue with a project maybe you could help me with. I have to answer (3) questions for a paper that is Due on December 10th. I turned in my rough draft but was told to rewrite it. The questions is as follows

The United states Supreme Court overturned , on constitutional grounds, a sentence given by a Washington state court using that state's own sentencing guidelines. Blakely v Washington, 124 S.Ct. 2531 (2004). To resolve this issue, the Supreme Court hastily granted certiorari in tow Cases, US v. Booker, No. 01-104 and US v. Fanfan, No. 04-105.

1. What is the history of the federal sentencing guidelines and why were they created?
2. What is the alleged constitutional defect? Explain the nature of the relevant provision and how it might apply to the federal sentencing guidelines.
3. What is your analysis of the claims made by both sides and what do you believe the Court's decision will be? Support your argument with relevant case laws and other relevant sources.

Now my problem is doing this paper using my sources without plagiarizing my paper. I am having such a hard time with this until it makes me want to quite. I really would appreciate your assistance I am in desperate need of some help on this and some good insight.

Posted by: Russell | Nov 21, 2004 9:54:46 AM

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Posted by: Windy Short | Nov 25, 2004 2:41:25 AM

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