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October 12, 2004

The Blakely earthquake hits New Jersey

I just received from a friend in the Garden State what he says "are the first two mid-level appellate opinions addressing Blakely" in New Jersey. Both opinions can be downloaded below.

As the friend explains:

Both cases involve a murder conviction, and (non-capital) murder is sui generis under NJ law, providing for an automatic sentence of at least 30 years (or b/w 30 years to life). But as to non-murder counts, one of the two opinions appears to reject the Blakely challenge to a separate count of conviction in dictum, but concludes that any error is harmless because the other aggravators the judge found involved prior convictions which do not fall within Blakely's/Apprendi's holding.

I have only had a chance to give both cases a very quick read, and each turns in part on a particular conception and articulation of New Jersey's statutory sentencing laws. But I was especially excited to see the New Jersey appellate court in NJ v. Abdullah, A-1982-02T4 (N.J. App. Oct. 12, 2004), articulating and relying heavily upon an offense/offender distinction in the application of Blakely. (Note that I (poorly) discuss this sort of distinction here, and I plan to post soon a draft article which better explains why I believe an offense/offender distinction provides a sound and appropriate way to conceptualize (and narrow) the import and impact of Blakely.)
Download nj_v. Abdullah.pdf
Download nj_v. King.pdf

UPDATE: The lawyer who sent me these NJ cases suggested that I note that there is another significant Blakely case, NJ v. Natale, pending unheard in the appellate division, and that in Natale the defendant has moved for direct certification to the NJ Supreme Court. I am able to post below an "amicus" letter supporting the defendant's motion for direct certification in Natale, which stresses that Natale presents the New Jersey Blakely issue "cleanly" because there are no prior conviction issues involved.
Download nj_amicus_letter.pdf

October 12, 2004 at 11:49 AM | Permalink


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I've been thinking about Professor Berman's Offense/Offender distinction. I'm not sure I like it for reasons that I cannot articulate at the moment. It would likely to get very messy indeed if the weighing of aggravators and mitigators also turns out to be a Blakely/Apprendi fact. In Indiana, at least, if there are mitigators, even in the non-capital context, a judge may not impose a sentence enhanced above the presumptive without finding the aggravators outweigh the mitigators. The same is true in the capital-sentencing context, and I believe it's true in all weighing States. Just last May, the Indiana Supreme Court said that capital weighing is not subject to Apprendi.

Perhaps it is highly unlikely that the Court will say that the outcome of weighing too is a Blakely fact because of the utter messiness. I haven't looked, as I should have, to see if any court at all has addressed Blakely and weighing, capital or not.

The Offense/Offender distinction does, in a rough sort of way, make sense in light of Blakely's repeated emphasis on notice. In committing a crime, a person is at least less likely to know what offense characteristics are likely to produce an enhanced sentence. This is especially true when the aggravating factors that may lead to a sentence enhancement are not enumerated by statute.

On the other hand, presumably we all have notice of our own past.

My own untutored, perhaps lazy, inclination is to borrow the historical / non-historical fact distinction from the Land of the Great Writ. As a matter of pragmatism, that would at least take weighing out of the game. And I'm not sure why the fact that someone has a history of violent behavior should be treated differently under Blakely from the fact that the same someone commmitted a crime especially violently.

If Almendarez-Torres goes down as so many predict, what will that say about the legal viability of an Offense/Offender distinction. The fact of a prior conviction is purely an offender characteristic.

Maybe in this on-off, binary world of marked and unmarked forms, we all just think too often in two's. After all, there are two kinds of people: those who think there are two kinds of people, and those who don't.

Posted by: Michael Ausbrook | Oct 13, 2004 2:04:53 AM

I wandered in a fog through all your jargon...it's all typical lawyer corral dust. Now what to do with 3 executions (and a fourth additional attempted execution) by a "juvenile" in Newark. The deliberate murder of a human being demands the life of the murderer, period. We even do that to animals that take human life and they are incapable of murder. Do we check to see if they're "juveniles"?

Posted by: Don | Aug 9, 2007 11:53:58 AM

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Posted by: | Oct 14, 2008 5:51:52 AM

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