Blakely's Hawaiian punch

As noted here yesterday, this week has been surprisingly full of noteworthy Blakely rulings.  And perhaps the most significant Blakely decision comes from the 50th state, Hawaii, through the state Supreme Court's ruling in State v. Rivera, 2004 WL 2955940 (Hawai'i Dec. 22, 2004).

As the Rivera decision details, Hawaii's history with sentencing reform is lengthy and intricate, stretching back to the mid-1960s.  And, interestingly, well before the entire Blakely line of cases, the state had developed its own elaborate jurisprudence for determining which sentence-impacting facts must be alleged in an indictment and found by a jury.  (This jurisprudence disinguishes between "intrinsic" and "extrinsic" facts and seems similar to the offense/offender distinction I propose in my "Conceptualizing Blakely" article.)

After the US Supreme Court handed down Apprendi, the Hawaii Supreme Court decided in Hawaii v. Kaua, 72 P.3d 473 (Haw. 2003), that the state's extended term sentencing scheme, in which judges can enhance sentences based on findings about the need for "protection of the public," was still constitutional.  However, as noted last week here, US District Judge Susan Oki Mollway earlier this month in Kaua v. Frank, Civ. No. 03-00432 (D. Haw. Dec. 9, 2004), held in a habeas action that defendant Kaua's extended sentence clearly violates Apprendi, and that the Hawaii Supreme Court decision in Kaua was "an unreasonable application of Apprendi."

Despite the federal district court ruling, the Hawaii Supreme Court in Rivera has now again held, by a 3-2 vote, that the state's extended term sentencing scheme is constitutional.  Though the majority's ruling, available here, is lengthy and complicated, the court seems to hold that Apprendi/Blakely is inapplicable both because Hawaii has an indeterminate sentencing system AND that because findings about "protection of the public" can fit within the "prior conviction" exception. 

Writing in dissent, which is available here, Justice Acoba asserts that Blakely requires reconsideration of the court's Kaua ruling and that Blakely now means that the Sixth Amendment is violated when a sentencing judge in Hawaii imposes an extended term based on solely the judge's findings.