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December 30, 2004

Another way to be punished without conviction

The Blakely ruling at its core seems sound to me because it will generally prevent persons from being punished for crimes for which they were not convicted (which is a not-uncommon practice under the existing federal guidelines).   But this interesting article from Utah shows that, even after Blakely, there are still some ways persons can be punished for unconvicted conduct.

The article reports on a decision by the Utah Board of Pardons and Parole to keep a man in jail for armed robbery after DNA evidence linked him to a series of rapes:

Some legal observers say the case of Rudy Michael Romero, 40, sets a dangerous precedent, because Romero is effectively being held in prison on an indeterminate sentence for crimes for which he was never convicted. 

Romero was sentenced to five years to life for aggravated robbery, and was scheduled to be paroled July 27 after serving 10 years of his sentence.  But the parole board rescinded the date after learning June 22 he had been implicated in five rapes committed in the early 1990s after the crime lab matched his DNA with preserved evidence.

Romero has no known sexual-assault convictions and wasn't implicated in the cases until the state crime lab began to take saliva samples from prison convicts to match against DNA evidence in unsolved crimes. However, Romero cannot be tried for the Jordan River rapes because the four-year-statute of limitations has expired.

The article also notes that "according to state law, the board's decisions are absolute and cannot be appealed."  However, in a post-Blakely world, it will be interesting to see if courts might be more willing to intervene in a decision of this sort than in the past.

December 30, 2004 at 08:51 AM | Permalink


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There's an interesting parallel here with the Adult Parole Authority cases in Ohio, particularly with the class action Ankrom v. Hageman, filed by the Ohio Public Defender, which is currently pending before the Tenth District Court of Appeals (full disclosure: I wrote an amicus brief on behalf of the Ohio Association of Criminal Defense Lawyers in support of the OPD). The short story: after the enactment of Ohio's felony sentencing reform in 1996, the OAPA changed its guidelines for inmates who had been sentenced under the prior law. The changes had the effect of extending actual prison time quite drastically for a large number of inmates.

While Blakely probably doesn't strictly apply to the Ohio cases (because of the 'statutory maximum' caveat), it's quite possible that the rulings in Booker and Fanfan might, which is one of the reasons I was hoping to get a decision before the Jan. 11 oral argument in Ankrom.

For more information on the Ohio problem, take a look at Layne v. Ohio Adult Parole Authority, 97 Ohio St.3d 456. It's the predecessor case to Ankrom.

Posted by: Jay Macke | Dec 30, 2004 9:22:50 AM

This, of course, raises the question: "What is punishment?" As an attorney for the parole board, I could argue that the board (probably, since I don't know the specifics of Utah's sentencing system) is charged with determining whether convicts should be released, based on the totality of the circumsances, including whether the person is a danger to the community, whether he's likely to reoffend, whether he's been "reformed" (whatever that means), whether he can contribute to society, etc. The new evidence changes the calculus for this defendant. Because evidence suggests that he was involved with (fairly) recent sex crimes, it is much more likely that he is dangerous and recidivist (especially since he was never charged with the sex crimes; he could think he "got away" with them).
So long as he's not getting MORE time than his indeterminant sentence would allow (yes, a pre-Blakely thought) why is it the court's job to recharacterize a parole board's decision from one based on safety/rehabilitation to one based on punishment/nonpunishment? At least in these types of systems, nonrelease from confinement does not necessarily equate to additional punishment.
Of course, that's just one side of it. That's why it's so hard to apply the Blakely ideas to the "old school" rehabilitation/incapication models.

Posted by: District Clerk Battling Blakely | Dec 30, 2004 12:49:12 PM

I don't know if Utah has a "good time" statute, but one of the major problems with the Ankrom case in Ohio is the fact that the parole board's new guidelines effectively eliminate statutory good time credit. Under Ohio's statute, good behavior could knock almost a third of an inmate's sentence off, since the inmate becomes eligible for release earlier.

Posted by: Jay Macke | Dec 30, 2004 2:00:46 PM

I forgot -- the Ohio Public Defender has a detailed web page on the Ankrom litigation:


Posted by: Jay Macke | Dec 30, 2004 2:12:03 PM

In your capacity as an Attorney for the Parole Board, what is your working definition of "reformed", or "rehabilitated"?

Posted by: Jeannie | Dec 30, 2004 9:39:45 PM


If Blakely does not apply to this case, how do you expect Booker/Fanfan to help?

By the way, isn't this really an ex post facto issue in OH?


Posted by: Confused | Dec 30, 2004 10:20:37 PM

There is an ex post facto issue, and that was one of the ways it was argued. I think Booker/Fanfan might help to clarify the meaning of 'statutory maximum,' which in relation to this situation, is somewhat unclear. Plus, I think Booker/Fanfan will clarify the issue of whether the 'statutory' part of the equation makes any difference at all.

Posted by: Jay Macke | Jan 2, 2005 8:07:23 PM

For everyone out there interested in helping their self out on these issues look at this website http://www.proselaw.net . They have pro se lawsuits available for purchase that address Adam Walsh and Megan’s law issues.

Posted by: Just Cause | Oct 11, 2008 11:00:46 AM

For everyone out there interested in helping their self out on these issues look at this website http://www.proselaw.net . They have pro se lawsuits available for purchase that address Adam Walsh and Megan’s law issues.

Posted by: Just Cause | Oct 11, 2008 11:01:05 AM

Thanks for the link. The website isn't up right now but says it will be soon. Does anyone have any information on how to get a termination of sentence on a simple possession case (that really should have been dismissed in the first place)? The people who are given parole dates but are not from the state of utah; what do they do with them? If they have no residence to parole to and their entire support system is in his/her home state how does that work? 5 years is a long time to be held for a small possession. ANY help at all with the Utah BOPP would help!

Posted by: utah info. | Mar 21, 2009 3:27:41 PM

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