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October 4, 2004

Reflections on the SG's argument on Blakely's applicability

Arguing for the government, Acting SG Paul Clement very effectively framed the issues facing the Supreme Court in an effort to highlight the "carnage and wreckage" that would flow from applying Blakely to the federal guidelines. Clement noted at the outset that there are 1200 federal criminal sentencings each week, and he suggested they could all be suspect if Blakely applies to the federal system. He also strongly argued that Dunnigan, Witte, Watts and Edwards all conveyed a particular understanding of the guidelines as distinct from the statutory maximums enacted by Congress.

Clement cleverly focused on the fact that in Watts essentially the whole court, save Justice Stevens, in summary fashion rejected a challenge to the use of acquitted conduct in guidelines sentencing. He also ultimately asserted that the key precedent really at stake was Mistretta, as he suggested that Mistretta itself would have to be reversed because the respondent’s argument would essentially mean that the US Sentencing Commission has functionally created elements for thousands of new federal crimes.

I think Clement is right when saying that extending Blakely to the federal guidelines would essentially overrule Watts. But that is, in my view, another argument for extended Blakely. Every year I teach Watts in my sentencing courses, and every year students are aghast that the existing guidelines require judges, based on preponderance findings, to enhance sentences based on facts relating to charges on which a defendant was acquitted. It is very hard for a criminal justice system to endorse Watts and also claim to have a serious commitment to the jury right.

But I think Clement is wrong when saying that extending Blakely to the federal guidelines would essentially overrule Mistretta. This claim is based on the assertion that extending Sixth Amendment rights to guideline factors would turn them into de facto elements. But because such guideline factors require judges to impose longer sentences, they truly are already de facto elements (and this is why Ex Post Facto law limits the application of new guidelines to old cases). In other words, defendants now feel substantively the impact of guidelines factors as if they were elements, and the SG is just arguing that defendants should not be provided the usual procedural protections that accompany such elements. This is what gives the government's argument a "through the looking glass" quality: according to the government, defendants get full procedural rights when Congress substantive increases sentences, but they do not get these rights when a (less democratically accountable) administrative agency increases sentences.

As I noted in a prior post and as others have noted throughout the blogsphere and in the media, it does not seem Clement was winning any converts with his (well crafted but very uphill) arguments. Indeed, the most interesting interchange during this part of the argument was when Justice Kennedy started to explore with Clement whether different facts might get different treatment under the Blakely rule. This led me to wonder whether Justice Kennedy was hoping to engineering a more nuanced approach to the (still developing) Blakely doctrine. No one followed Justice Kennedy's lead at oral argument, but I think he may be on to something that could merit some time and energy as the Justices start writing all this up.

October 4, 2004 at 11:32 PM | Permalink


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Posted by: JOSEPH QUATTRONE | Oct 5, 2004 9:53:42 AM

...more proof that Justice Kennedy is "re-appearing" as the most interesting justice on the Court. His decisions reflect a strong moral sense and respect for freedom and individual liberties (reaffirmation of the validity of substantive due process, Miranda rights, etc.) while still grounded in some real world application, compared to the other justices who sometimes sacrifice all for the sake of ideals (like Scalia and Stevens often do), or try to forge new law for the sake of being right-centrist (O'Connor). I think a Kennedy Court would be a very interesting and positive step in legal jurisprudence.

Posted by: District Clerk Battling Blakely | Oct 5, 2004 11:48:16 AM

In Almendez-Torres, the court stated that criminal history was a penialty provision, and that makes it ok to count. My question is "What keeps all these enhancements that are in question, with Blakely, Fanfan and Booker, from being penalty provisions themselves?" "And would the enhanced base offense level, from 14 to 20 for 922(g) if you have a prior controlled substance conviction, fall under the penalty provision idea or the illegal sentence enhancement in question?" Please reply to this...

Posted by: Samantha Johnston | Oct 5, 2004 1:57:42 PM

I am a prosecutor and the author of the Blakely response.

You have put your finger on the real error in this line of cases. One can only call sentencing factors "de facto elements," because Apprendi defined the effect of an element as punishment. This is like saying the effect of marriage is having children.

The effect of an element is conviction. As the SG said in Blakely, an element is defined as what is sufficient and necessary for conviction, not sentencing. The effect of conviction along with other sentencing factors, that may OR MAY NOT be factors descriptive of the offense, is punishment. If punishment were determinative, then bail plus continuance should be decided by a jury. After all the combined ruling prolongs detention, no-contact orders, and other conditions of release. And the punishment certainly exceeds the statutory maximum for an acquittal. Under the Apprendi definition, a court would need to convene a jury to find someone in contempt.

Whatever people's feelings about the federal guidelines or the respect due the court, the DEFINITION OF ELEMENT has led us down this path, and the premise is wrong. My regret is attempting to distinguish Blakely and focusing on the definition of "statutory maximum" rather than attacking Apprendi and the definition of "element."

Posted by: Teresa Chen | Oct 5, 2004 3:15:25 PM

My boyfriend was enhanced 2 levels .for supposedly perjery and obstruction of justice in a drug case . He was called a flat out lyer by the judge and enhanced. The witness against my boyfriend was also charged with drug crime and he got less than 5 years for making substantial assistance with the feds. He obviously did this to save himself.But to enhance my boyfriend 2 levels based on testimony from another individual with the same crime and crime history, That is just plain ludicruis. Will this Blakely law do anything for people with this situation ? Thanks

Posted by: tink | Oct 6, 2004 1:47:20 AM

Dear Professor Berman,
After speaking with an inmate for whom my husband and I have been advocating, I logged onto your site. I think I've opened a Pandora's Box--I've been printing article after article to send him. He has been imprisoned for the last twenty years: he is the third person convicted in a crime committed by two persons, per the testimony of a police officer who was a victim in the crime. Maximum sentence at that time was 40 years, sentence received was 75. After working with the inmate over the past six years, we do believe it is not only an unjust sentence but a wrongful conviction. Much of his defense has been pro se and so, when he heard about your web site, he immediately asked me to research it. I imagine I will be back here frequently. Sorry I don't qualify as one of your distinquished readers, but it appears that you may be a source for many inmates.

Posted by: Mary Jane Sheehan | Oct 10, 2004 11:38:21 PM

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