Sentencing Law and Policy

Fanfan to the Supreme Court?

This evening I had forwarded to me an e-mail that was posted on the NACDL list-serve. It suggests that the Solicitor General is thinking about appealing the case of US v. Fanfan directly to the Supreme Court. Background on Fanfan, decided on June 28, 2004 by Maine District Judge D. Brock Hornby can be found here.

Here's the text of the e-mail from Rosemary C. Scapicchio posted on the NACDL list-serve:

I received a message from Michael R. Dreeben from the Solicitor General's Office on Friday. They claim they are considering appealing Fanfan's sentence directly to the Supreme Court. We did not file an appeal because we got the benefit of Blakely. That makes this case a pure sentencing issue. Dreeben is asking about cross-appeal. Claims he has spoken to the Supreme Court and has tentatively set a schedule as follows: Government to file their petition by August 2, 2004. Fanfan response due in 10 days. Government will file it's brief by end of August. Fanfan by September. Argument the first Monday in October. I have not officially responded because I am looking for everyone's input and I need to speak to Fanfan. Any and all suggestions welcome.

Blog Enhancements

The (much needed) break of the weekend has allowed me to finalize some enchancements to the blog. I won't go through all the technical tweaks, but most fundamental is the addition of new categories sub-dividing the Blakley world, which can now be found in the category archives. I hope this helps readers focus on Blakely developments of particular interest. Also, there is now a search box to help in this way as well.

More importantly, I can now officially announce my affiliation with Paul Caron and the Law Professor Blogs Network he has developed. Paul's wonderful TaxProf Blog was one of my inspirations for starting this blog, and I am very pleased to be working with him and tech wizard Joe Hodnicki.

Blakely developments in Arizona

A few recent news articles suggest that Arizona will be an interesting state to watch for Blakely developments. First, this article highlights that in Arizona, defense attorneys "find themselves in rare agreement with prosecutors on one issue: there's no need for the Legislature to rush to change state law in response to a U.S. Supreme Court ruling that may affect the way Arizona sentences criminals." I highly recommend reading this entire article, which is rich with information about coping efforts and plans for Arizona state sentencing. Among the interesting tidbits:

Maricopa County Public Defender James Haas said the criminal justice system's response to the ruling so far varies, with some counties using plea agreements that have defendants waive the need for jury findings, some reluctance by judges to impose sentences beyond the presumptive terms and one judge reportedly declaring that the ruling doesn't apply to Arizona.

Also, there is apparently a healthy collaborative spirit as the system is thinking about long-term fixes:

[D]efense attorneys are reaching out to prosecutors, scheduling informal meetings in coming weeks. "We may not agree on what we're going to do but at least we ought to talk together."... However, it's likely that numerous sentencing issues stemming from the ruling will still have to be fought out in court - no matter what the Legislature does in response, Haas said. "Every time you talk to people you come up with new issues."

And to provide a ground level view of post-Blakely life in Arizona, here is an article describing Blakely's impact on a manslaughter prosecution of Lee Parulski. Here's an interesting snipit:

During Thursday's hearing, Jim Coil, the prosecutor, said that he offered three options to Mike Rollins, Parulski's attorney, after the Blakely ruling. Coil said Parulski could waive his Blakely rights; a new plea agreement in which Parulski would plead guilty to second-degree murder could be signed; or a jury could be called. Rollins said he rejected the waiver or a new plea agreement. He said calling a jury would be acceptable. However, there is no procedural mechanism under Arizona law to call a jury in a case involving a plea agrement.

The week that was

Though I have an affinity for hypebole, I do not think it is an overstatement to call the work week just ended the wildest and wackiest week ever in the federal criminal justice system. We had at least a dozen major court rulings, not to mention a Senate hearing and then Martha. Whew. Though later I may have some posts with deeper reflections, for now I want to just recommend weekend reading:

First, I highly recommend Judge Colleen McMahon's thoughtful decision in US v. Einstman, No. 04 Cr. 97 (SDNY July 14, 2004). Judge McMahon, expressly "adopting the reasoning" set forth by Judge Paul Cassell in US v. Croxford, does not break any radical new ground in her decision to find the guidelines unconstitutional and also not severable. But she beautifully enhances the discussion of the major issues, while also becoming yet another judge to state on the record that she wishes "that the Supreme Court will address this issue immediately ... and in an expedited manner."

Second, as the comments here highlight, Judge Weinstein's decision in US v. Khan, No. 02-CR-1242 (EDNY July 12, 2004) sets forth the "history of juries and judges cooperating in sentencing in the United States," and does so in a way that might stimulate rethinking of the very rights that have engendered this Blakely revolution.

Finally, providing perhaps the tightest review of the week that was, in US. v. Thomson, 2:03-00187-02 (SDWV July 15, 2004), the esteemed Judge Joe Goodwin (of Shamblin fame) ultimately concluded that he had to stop the madness, at least in his courtroom. Reviewing all the major and divergent rulings of the past two weeks, Judge Joe Goodwin concludes as follows:

The court FINDS that consistent application of the law is of paramount importance in sentencing matters. Therefore, in the interests of justice, the court will move all sentencing hearings to a date after October 15, 2004.

Law professors always want to have the last word

Though everyone knows that Dahlia Lithwick rocks --- and she really does --- I couldn't let her have the last word in the on-going debate over whether the Supreme Court needs to get in gear and take a Blakely case ASAP. Luckily for me, the great folks at Slate allowed me to respond to Dahlia's argument that there no reason for the Supreme Court to feel any urgency about Blakely developments. You can find here my article entitled, "Supreme Court Cleanup in Aisle 4: Blakely is too big and messy to ignore." I look forward to hearing what everyone thinks about my attempt to do Blakely hip.

California dreaming...

I am planning on getting a good night of sleep tonight, and perhaps I'll be dreaming about the California Supreme Court's ability to get right to work on the Blakely issue. Here's my prior post discussing People v. Towne, the first case in which Blakely issues will be examined by the California Supreme Court.

At first, based on a read of the lower court opinion, it was hard to figure out whether Towne was going to present the Blakely issue cleanly. Helpfully, additional information --- particularly this supplemental letter containing points and authorities in support of the defendant's argument for a reversal of his sentence to the upper term --- suggests that Towne should be a very interesting and effective case for state consideration of Blakely. Also helpful and interesting is this article giving background on the case.

Finally, it is worth highlighting that the fine folks at the First District Appellate Project now have a host of additional California-specific briefs/petitions on their fine FDAP Blakely Page.

Martha is getting Blakelyized, while Olis isn't

Interestingly, Martha Stewart, according to this story, is going to be free pending appeal because of Blakely. Judge Cedarbaum apparently told Stewart:

In view of the turmoil resulting from the Supreme Court's decision in Blakely v. Washington, I grant your application for a stay of sentence pending appeal.

Meanwhile, according to this story, US District Judge Sim Lake denied a request by former Dynegy Inc. finance executive Jamie Olis -- who I believe has just recently started serving his severe 24-year term for a fraud calculated to have resulted in a huge financial loss -- to be freed from prison pending an appeal of his November conviction.

Though I am not intimately familiar with either case, my first reaction is that Olis generally has a much, much stronger Blakely claim on the facts. But, of course, as of this writing the guidelines are still in force in the Fifth Circuit while everything is still up from grabs in the Second Circuit while we wait for the Justice to speak about the certified questions. Plus, though I am really not an expert on these issues, I think different considerations come into play when the question is freeing someone already incarcerated, as opposed to allowing someone to remain free. Thoughts?

Leaderboard Report

Though Judge Cassell is still the leader in the clubhouse with 3 major Blakely decisions to his name, the Seventh Circuit is helping to set the pace for circuit courts with another Friday afternoon entry. In Simpson v. US, the defendant asked "for permission to file a second or successive collateral attack under 28 U.S.C. § 2255" following Blakely. The Seventh Circuit dismissed Simpson’s application, but did so "without prejudice to renewing his request should the Supreme Court make the rule announced in Blakely applicable to cases on collateral review."

Interestingly, the Seventh Circuit, in a unanimous opinon written by Judge Rovner joined by Judges Ripple and Williams, flatly concluded that the "rule announced in Blakely is based in the Constitution and was not dictated or compelled by Apprendi or its progeny." Then, after explaining how the Blakely rule would impact Simpson's sentence, the court explained:

Assuming that the Supreme Court announced a new constitutional rule in Blakely and that Simpson’s sentence violates that rule, the proposed claim is premature. The Supreme Court has not made the Blakely rule applicable to cases on collateral review as is required for authorization under § 2244(b)(2)(A) and § 2255 ¶8(2).... Should the Supreme Court announce that Blakely applies retroactively to cases on collateral review, Simpson can file a renewed application.

And, speaking of leaderboards, through two rounds of the British Open, Skip Kendall is the surprising leader at -7, while my pick Ernie Els is tied for fifth at -4 (along with Vijay Singh and others). Phil Mickelson posted an impressive 66 today to get in at -3, while Tiger Woods is hanging around at -1. Should be a great weekend of golf.

Judge Weinstein Speaks!!

I'm back at it even faster that expected because I just received two opinions authored by EDNY Senior US District Judge Jack Weinstein. I have not had a chance to even glance at these opinions, but because of the source I am sure they are fantastic and fantastically interesting, worthy of posting sight-unseen. More commentary on this front, too, before long.

Download weinstein_usvkhan.pdf

Download weinstein_usvlandgarten.pdf

UPDATE: Even if you are not a fan of Star Trek, you cannot help but love the Wrath of US v. Khan. Though I've only now had a chance for a very quick read, the decision is classic Weinstein, ingeniously wacky and wonderful, and it also honors this blog with a cite. (Of course, Weinstein has long been the hero of writers interested in cite counts, and he does not disappoint here.) More substantive commentary later.

I'm back...

And I have so much to talk about after having a terrific morning in Oxford, Ohio sharing a podium with USSC Vice Chair John Steer and hearing the on-going struggles and concerns of prosecutors as they try to keep the wheels of justice turning. Of course, you'd never guess what we spent our time talking about.

Later this afternoon (much later, I fear), I will have a series of posts on various matters -- including commentary on this decision by US District Court Judge Miriam Goldman Cedarbaum to impose (and also stay pending appeal) a sentence for Martha Stewart of five months' imprisonment, five months in home confinement, two years of supervisory probation and a $30,000 fine. More soon.

Stop the world (for a few hours)

After this post, I am off-line for a while so I can travel to the far reaches of Ohio for a long-planned talk to the US Attorneys for the Southern District of Ohio. With all the commotion of this week, I have only been able to outline my presentation. Here's what I have: "Blakely, WOW! Montgomery, HUH? Let's Discuss." As before, I'm sure the folks at the SCOTUS Blog, How Appealing and the Blakely Blog will do a great job covering breaking Blakely news until I return.

Dahlia Speaks (about Supreme Court scuttlebutt)!

I am pleased as punch that Dahlia Lithwick — who at this fan site is astutuely described as "the rockingest Supreme Court columnist ever ever ever" — has waded in to the Blakely pool (or should I say quagmire) with this commentary cautiously titled "No-Good Lazy Justices: After the Supreme Court's sentencing case, the sky is falling. Hooray!"

Part of the reason I am giddy (and flattered) is because Ms. Lithwick references this blog in her piece, and even calls this blog "wonderful." But even more significant and important is the fact that her thoughtful piece fuels and enhances the important debate (noted here and here and in this Washington Post editorial) over when and how the Supreme Court should deal with Blakely issues.

More soon.

UPDATE: I have hastily drafted a "response" to Ms. Lithwick's piece in which I try to explain, in Slate terms, why Blakely is such a big case. I'll make that response available when it is fit for others.

Martha, my dear...

According to this CNN report, it only took the obviously efficient US District Judge Miriam Cedarbaum a one-sentence, handwritten note to reject attempts by Martha Stewart's legal team to declare the federal sentencing guidelines unconstitutional. Here's the note, as reported by CNN:

The sentencing guidelines applicable to this case do not require any enhancement by the judge, accordingly, Blakely is not in point.

I am not sufficiently familiar with the details of Martha's prosecution to know if this is a sound legal ruling. But, as suggested here, were Martha being sentenced in the Sixth Circuit, the fact that her case apparently involves no "Blakely factors" might not matter. In any event, I would especially encourage any white-collar practioners to use the comments to discuss whether this is really as simple as Judge Cedarbaum makes it sound.

Does the "Rule of Lenity" matter in answering severability questions?

Food for thought for all of those struggling --- and who isn't? --- with tough severability questions and other challengeing issues in the aftermath of declaring at least portions of the federal (or state) guidelines unconstitutional:

Does the "Rule of Lenity" come into play when a federal court is deciding which of the "Croxford choices" to adopt after a conclusion of unconstitutionality? Does it come into play in other on-going debates over how to make sense of the post-Blakely world?

The Supreme Court in Staples v. United States, 511 U.S. 600, 619, n. 17 (1994) described the "rule of lenity" as a doctrine which provides that an "ambiguous criminal statute is to be construed in favor of the accused." Isn't the Sentencing Reform Act "ambiguous" on the question of severability?

Am I crazy here? Please use the comments to tell me if so. Thanks

Spanning the globe, Blakely style

From coast to coast, local newspapers are discovering that the Blakely decision may impact local cases. Here's just a sample of the coverage: this Cincinnati Inquirer story covers the impact of Blakely in Ohio in the wake of the Sixth Circuit's recent Montgomery decision, while this story in The Flint Journal discusses a motion made in one local case to declare the federal guidelines unconstitutional -- a motion which should be eaiser(?) for Senior US District Judge Paul V. Gadola to resolve after the Montgomery ruling (background here).

Moving south, here's a story from the Eastern Arizona Courier in which state Superior Court Judge Douglas Holt thoughtfully discusses the possible impact of Blakely and reactions thereto in Arizona. Finally, this interesting article from Myrtle Beach Online discusses Blakely's potential impact on three doctors sentenced to long federal prison terms for overprescribing narcotics. And since Myrtle Beach is the self-proclaimed "Golf Capital of the World" -- not to mention where I will be taking a family vacation in August -- I can't resist using this forum to predict that Ernie Els is the player to beat in The British Open Championship, which started today.

District Court dynamics

I have heard from many about interesting efforts by prosecutors to deal with Blakely, and about interesting responses from defense attorneys and district courts to these efforts. Though Judge Cassell's written testimony to the Senate Judiciary Committee (available here) provides the most extended account of different Blakely coping efforts, I will try to provide examples of interesting rulings that come my way. So, here I provide a copy of a recent ruling in US v. Roberts by SDNY US District Judge Lewis Kaplan --- who, by the way, I was lucky enough to have in his pre-judge days as my "partner buddy" while a summer associate at Paul, Weiss in NYC. In the attached ruling, Judge Kaplan denies the government's application to submit special interrogatories or special verdict to the jury, and here's a flavor of his reasoning:

I do assume I have discretion to bifurcate and take a second and special verdict with respect to sentencing. The question is whether I ought to do it in the exercise of discretion. The argument for doing it, it seems to me, is essentially that it is like chicken soup. It may not cure the cold but it isn't going to make it any worse [especially in a case where such an approach might be easily employed].... But at the end of the day, it seems to me that to have a system in which special verdicts would be taken on sentencing factors in simple cases but not in complicated cases is just exceptionally unfair, exceptionally undesirable and certainly not something that any policymaker to date has indicated a willingness to adopt.
In consequence, I just feel that it would not be an appropriate exercise of my discretion to start down that road by taking a special verdict in this case simply because it is a simple one and it isn't hard to do, and thus, in some way lend some credence to the notion.

The whole transcript is a valuable read, and can be downloaded here:
Download kaplan_sdny_blakely_ruling.wpd

The Sixth Sense

M. Night Shyamalan has a new movie due out later this month, but I have come to read the Sixth Circuit's decision in Montgomery (background here) as something of a revival of his modern classic The Sixth Sense.

First, I would bet the Montgomery decision is already giving prosecutors (and perhaps other Sixth Circuit judges) nightmares. Plus, in a case apparently without upward enhancements at issue and in which Blakely was neither briefed or argued, the decision to declare the guideline only advisory in Montgomery sure was a surprise ending. And, in the end, the bold and opaque decision will likely have an effect that might even be called brooding. Here's an article discussing fallout from Blakely and Montgomery in the Sixth CIrcuit. It notes that:

Federal judges in southern Ohio were so worried about the impact of the [Blakely] decision that they declared a 30-day moratorium last week on all sentences that could be affected by the Blakely decision. Court officials say at least 100 cases have been put on hold. "There's just a lot of confusion because no one really knows what the impact will be," said Jim Higgins, executive of the 6th Circuit. "Clearly, people are searching for answers."

Second, the mantra for the Montgomery decision should be "I see dead cases." In Montgomery, Judge Gilbert Merritt places heavy relaince on 18 U.S.C. § 3553(a) when declaring the guidelines only advisory as a result of Blakely. But, over a decade ago, in US v. Davern, 937 F.2d 1041 (6th Cir. 1991), Judge Merritt forcefully argued that § 3553(a) justifies approaching the guidelines as "general principles of sentencing" in order to "transform mandatory rules into the more modest name guidelines." But his collegues before long made his ruling a dead letter by taking the case en banc and reversing it. US v. Davern, 970 F.2d 1490 (6th Cir. 1992).

More SCOTUS Scuttlebutt

Lyle Denniston, of SCOTUSblog fame, wrote to me in response to my mini-rant about the need for quick action by the Supreme Court. Here's what he had to say:

A clarification: I did not mean to suggest there was no excitement at the Court about the Blakely follow-up issues; I meant only that the 2d Circuit had stirred no excitement with its certified questions. There is a considerable difference. And the absence of a sense of crisis is normal for a Court that is constantly being bombarded with urgent requests to do something now -- on everything from Death Row reprieves to the breathless maneuverings in a case like Bush v. Gore.

One of the things I heard today was that taking on the 2d Circuit questions would only delay final resolution, perhaps by six months, and there is a keen interest in not stretching this thing out. Interestingly, we have not yet seen the calendar for October oral argument yet, and there is no reason to think that it is not done yet. The reason, I would guess, is this: it is being held up to see if space needs to be saved for a Blakely redux. The ball definitely is in Paul Clement's hands right now, but when he moves, so will the Court, and I believe quite rapidly.

Needless to say, I am very pleased to know that there is in fact a sense of urgency about all this within the Supreme Court, even if the certified case is not the route taken. And I was also pleased to discover tonight that I was in good company with my ranting. The Washington Post has this editorial running Thursday titled "A Supreme Mess" which reviews the legal confusion and concludes, "The Supreme Court made this mess, and it should be obliged to clean it up quickly." For a little fun, I encourage readers to guess in the comments the exact date when the Court will grant cert. (I'll even send a prize to anyone who guesses right, but only one guess per person, please.)

I must finally say that I find it a bit disconcerting that the Supreme Court is so unwilling to let circuit court judges help determine its docket --- as Lyle puts it, "The 'certified question' procedure has no devotees on the Court" ---while it is apparently quite willing to let its docket be shaped by the desires of the executive branch acting through the SG. Well, at least Lyle's report makes me seem clairvoyant when I previously posted that new Acting SG Paul Clement "will likely play a major role in determining when and how the Supreme Court rules on what Blakely means for the federal sentencing system."

I'm starting to think Ted Olson probably decided to retire somewhere in the middle of reading Justice Scalia's opinion in Blakely.

Coast to Coast Blakely developments in the states

In addition to the decision by the California Supreme Court to tackle Blakely in a pending appeal, Blakely issues are start to crop up in other state appellate decisions around the country. Here are two interesting examples.

Florida: In the (hard to follow) case of Sigler v. Florida, 2004 Fla. App. LEXIS 10485 (4th Dist. July 14, 2004), a Florida intermediate appellate court explained that, before Apprendi and Blakely, the "Florida Supreme Court [had] construed [Florida code] section 924.34 to authorize appellate judges to make a finding of guilt as to each element of permissive lesser included offenses in place of a jury determination. See I.T. v. State, 694 So. 2d 720 (Fla. 1997)." The Sigler court then explains its view that:

[T]hese later decisions [of Apprendi and Blakely] make it clear beyond any doubt that section 924.34 as interpreted in I.T. is contrary to the Sixth Amendment when the previous jury determination cannot be deemed to have necessarily found defendant guilty as to every element of the permissive lesser included offense. That means that as for this circumstance we are expressly holding the statute invalid under the United States Constitution.

In other words, the Sigler court is finding a Sixth Amendment limit on appellate judge fact-finding as well as sentencing judge fact-finding.

Tennessee: Meanwhile, in Tennessee v. Fuller, 2004 Tenn. Crim. App. LEXIS 626 (July 13, 2004), the court frankly asserts that the "United States Supreme Court's recent opinion in Blakely v. Washington, 2004 U.S. LEXIS 4573 (2004), calls into question the continuing validity of our current sentencing scheme." Though the Fuller court then avoids finding a Blakely problem in the case at hand, it still seems noteworthy that the Tennessee courts already see problems with its sentencing schemes in light of Blakely.

Action by the Supreme Court (of California)

Showing how fast it can move, the Supreme Court of California today granted a petition for review in People v. Towne, as noted here, and in so doing stated:

In addition to the issue raised in the petition for review, the parties shall address the following issues: (1) Does Blakely v. Washington (June 24, 2004) __ U.S. __ [2004 WL 1402697] preclude a trial court from making the required findings on aggravating factors for an upper term sentence? (2) If so, what standard of review applies, and was the error in this case prejudicial?

My instinct is to praise the Supreme Court of California for taking on Blakely so quickly. However, it might be argued that the Supreme Court of California ought to let lower court hash through some of these issues a bit first. Moreover, as Jonathan Soglin over at Criminal Appeal discusses briefly, the factual setting and legal issues raised in People v. Towne make the case pretty complicated. The unpublished court of appeals decision below is primarily focused on whether the trial court "abused its discretion by imposing the upper term and doubling it after refusing to" strike a prior conviction (a discretion that the California Supreme Court found provided in state law in People v. Superior Court (Romero), 13 Cal.4th 497 (1996). However, in the decision's final paragraph, the lower court stated:

Additionally, the trial court did not abuse its discretion by imposing the upper term. Contrary to appellant’s claim, the jury’s necessary findings on the acquitted counts did not conflict with the court’s findings. The court was well aware of the jury’s findings, acknowledged the victim lied and observed that the jury had been able to weigh the evidence and make credibility findings in reaching its verdicts. Moreover, even if there had been error, it would have been harmless. “A single factor in aggravation will support imposition of an upper term. [Citation.] ‘When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.’ [Citation.]” (People v. Cruz (1995) 38 Cal.App.4th 427, 433-434.) [Footnote 3: Further, the trial court could have used as reasons that appellant had served prior prison terms, his prior performance on probation or parole was unsatisfactory and that he was on parole at the time of the current offense. (See People v. Steele (2000) 83 Cal.App.4th 212, 227.)]

I believe that it is this portion of the opinion that is prompting the Supreme Court of California Blakely question, but it would seem that there are a number of interwined issues concerning the operation of discretion and the impact of prior convictions in the decision to impose an "upper term sentence." Perhaps Californians (or others) can use the comments to discuss whether Towne can or likely will be a good case for the Californias courts to start clearing up emerging Blakely issues in California law.

Thanks for visiting and helping

Many thanks to all the readers and suppliers of information. This site is on pace for a second day of over 3000 hits, and I've received just today over 100 Blakely related e-mails (many with important news and attached documents) and it's not yet even 4pm. I'm not complaining --- please keep sending me news and materials --- but it is now taking me longer than before to post new news and respond with thanks. In addition, I want to highly encourage anyone with questions or news to consider using the comments, which still seem a bit quiet given all the traffic.

The Challenges for SCOTUS

I argued below that the Supreme Court should take a Blakely case very soon in order to provide some additional guidance about what the Blakely decision means for federal sentencing. But, to really bring more order to our changed sentencing world, the next Blakely case would have to address an enormous number of complicated and important questions. For example:

1. Will Harris, which allows judges to find facts that aggravate minimum sentences, ultimately survive Blakely? (Recall that both Justices Scalia and Breyer are seemingly shaky votes in the (five vote) Harris majority.)

2. Will the Almendarez-Torres exception, which allows judges to find "prior conviction" facts that aggravate sentences, ultimately survive Blakely? (Recall that Justice Thomas is already on record saying he regrets his vote as part of the (five vote) Almendarez-Torres majority.)

3. Is Blakely retroactive, perhaps even before Apprendi was decided in 2000, or at least after Apprendi?

4. Does the Blakely rule apply in all sorts of other settings in state and federal systems when judges find facts that (functionally) aggravate punishment (e.g., ordering criminal forfeitures, revoking probation, administering drug courts)?

I doubt any single case raises all these questions (and I would be shocked if such a case comes before the High Court). But I know from my e-mail in-box that there are lots of courts, lawyers and academics who could add a dozen more consequential question to this list. We have now been litigating the meaning of Furman for more than 30 years and there are still open questions; the same will likely be true for Blakely. We may as well get the progeny started ASAP.

I encourage readers to use the comments to add other big questions needing big answers in the post-Blakely world.

When and how will SCOTUS get involved?

As noted before, there is no doubt the Supreme Court will have to speak on Blakely issues. But now the big questions are not only when, but also how the Supreme Court will get involved. Helpfully, this fantastic piece at the SCOTUS Blog provides an insightful account of some of the possibilities, challenges and opportunites presented by different routes for Supreme Court review. I completely agree with Lyle Denniston's analysis that, as they did in Mistretta, the High Court is more likely to take a case from a district court than one of the appeals already in front of them. Judge Cassell's Croxford case seems like a good candidate, though there is also Judge Goodwin's Shamblin case and many other viable possibilities now. One wonderful legal realist question is whether the Justices will care, when deciding which case to take, about the underlying crime or just about whether the case presents the legal issues cleanly. I always thought it was significant that the Court used the Rodney King case as its vehicle to issue a pro-defendant ruling about departures in Koon v. US. See generally 76 Notre Dame L. Rev. 21 (2000).

In any event, I am very disturbed by those parts of the SCOTUS blog report that suggest there is no excitement about this issue in the halls of the High Court. As of this writing, at least 15 circuit judges have said on the record, "Review this matters quickly, Supremes!" (Judges Posner and Easterbrook and all the active judges of the Second Circuit.) Meanwhile, the Sixth Circuit may now be a completely guidelines-free zone after the decision today in Montgomery. And the Senate Judiciary Committee, showing I think a lot of respect for how the judicial branch can handle these matters, seemed to conclude yesterday that it would stay out of the scrum so that the Supreme Court could get the first word on what Blakely means for the federal system. The Supreme Court needs to act and act quickly if only to justify the faith that I think is now being shown by Congress in the judiciary's ability to handle it own mess.

I am on record as saying to Congress that it should "Go Slow." Now let me be clear on the record that I think the message to the Supreme Court should be three words: "Go really fast!"

More later about the challenges facing the High Court whenever they take on this matter.

The 6th Circuit Speaks!!

I had heard rumors that other circuits were soon to join the fray, and now in US v. Montgomery, 03-5256 (6th Cir. July 14, 2004), the Sixth Circuit becomes the second federal circuit court to hold that Blakely invalidates the federal guidelines. Here's the key language from the opinion, authored by Circuit Judge Gilbert Merritt with Judges Martha Daughtrey and John Nixon (sitting by designation) in the unanimous panel, which has my brain racing (see extended commentary below):

[I]n order to comply with Blakely and the Sixth Amendment, the mandatory system of fixed rules calibrating sentences automatically to facts found by judges must be displaced by an indeterminate system in which the Federal Sentencing Guidelines in fact become "guidelines" in the dictionary-definition sense ("an indication or outline of future policy," Webster's International Dictionary (3d ed. 1963)). The "guidelines" will become simply recommendations that the judge should seriously consider but may disregard when she believes that a different sentence is called for....

The Sentencing Reform Act of 1984, which gave rise to the present determinate sentencing system, does not by its terms require a mandatory, rule-bound system calibrating sentences to judicially-found facts. The statutory language would have allowed the creation of an indeterminate system in which the guidelines are simply considerations for Article III federal judges to access before passing sentence. The most important provision of the statute, section 3553(a) of Title 18, simply says that "the court, in determining the particular sentence to be imposed, shall consider" a large number of listed factors like the "seriousness of the offense" and the "characteristics of the defendant," only one of which is the "kind of sentence and the sentencing range established" by the Sentencing Commission. In addition to the various factors that a judge should "consider" as listed in Section 3553(a), the next sub-section counsels the judge to consider the "aggravating or mitigating circumstances" of the particular case. The Sentencing Commission itself interpreted the statutory language and converted this advisory language into the kind of mandatory rules of a determinate system of sentencing that the Supreme Court has now invalidated. In light of Blakely, and the language of the enabling act itself, a district judge should no longer view herself as operating a mandatory or determinate sentencing system, but rather should view the guidelines in general as recommendations to be considered and then applied only if the judge believes they are appropriate and in the interests of justice in the particular case.

More huge news and more commentary when I can digest it all.

UPDATE: Like Blakely itself, this brief decision creates, at least for me, a lot more questions than it answers. My quick reaction is that the Sixth Circuit is ruling that the Commission-created administrative guidelines are unconstitutional (as applied?) because they require impermissible judge fact-finding, but that the Sentencing Reform Act as a whole survives Blakely because the statute itself does not require judge fact-finding. (Of course, the shrewd reader might notice this is an inverted perspective on why Easterbrook and the Fifth Circuit think the Commission's guidelines remain constitutional!) The result, then, is to convert the guidelines into just advisory recommendations to the judge. Neat result, but a head-scratcher for a number of reasons:

First, the legislative history of the SRA shows that Congress contemplated and rejected the creation of merely "voluntary" guidelines. See Mistretta, 488 U.S. at 367 (noting that the "Judiciary Committee rejected a proposal that would have made the sentencing guidelines only advisory and citing S.Rep. No. 98-225 (1983) at p. 79). Ergo, I do not see how the Sixth Circuit's reading of the SRA fits with its legislative history. UPDATE ON THIS POINT: A wise colleague noted that there is support in the House version of legislative history of the SRA for making the guidelines more advisory and less presumptive, and thus it might be arguable that you are in fact being faithful to the SRA to conclude, after Blakely knocks out the mandates, that an advisory system should be left standing.

Second, the Sixth Circuit asserts:

"This solution to the immediate problem in federal sentencing is not inconsistent with the alternative position by the Deputy Attorney General in his memo to federal prosecutors, a memo forwarded to the federal judiciary on July 7, 2004. ("In that event [when the guidelines may not be applied as mandatory rules], the government should urge the court to impose sentence, exercising traditional judicial discretion, within the applicable statutory sentence range" with the "recommendation in all such cases ... that the court exercise its discretion to impose a sentence that conforms to a sentence under the Guidelines....")"

But I think the effect, if not the intent, of the Sixth Circuit's ruling is that the federal guidelines CANNOT BE IMPOSED IN ANY CASE in the Sixth Circuit, even if the case raises no Blakely problems or the defendant waives his Blakely rights! I am certain this is not DOJ's view of the impact of Blakely. UPDATE ON THIS POINT: On a second read, I think it is arguable that this opinion is only meant to apply Blakely-problematic cases, but who knows.

FINAL POINTS FOR NOW: This was a very peculiar factual setting for making a big Blakely ruling, not to mention a panel which is, I think it is fair to say, not wholly represenative of the Circuit as a whole. I think the spelling in the Sixth Circuit is "en banc," no?

This is still a very quick reaction to a very opaque case. But I am starting to think the post-Blakely world actually looks a lot like an M.C. Escher painting.

Thoughts and holdings on Blakely retroactivity

Figuring out what Blakely means for on-going cases is, of course, critically important for courts and practitioners right now. But also extremely consequential is whether Blakely might have retroactive application. Though the Supreme Court limited the retroactive application of its Ring holding in Schriro on the same day it decided Blakely (background here), in that case there was no question about the application of the proof beyond a reasonable doubt standard (see footnote 1 of the Court's opinion); Schriro only concerned retroactive application of the jury right. Consequently, a number of commentators have astutely noted that Schriro does not conclusively foreclose retroactive application of Blakely. Also recall that Justice O'Connor stated in her Blakely dissent that "all criminal sentences imposed under the federal and state guidelines since Apprendi was decided in 2000 arguably remain open to collateral attack." Blakely, slip. op. at 11 (O'Connor, J., dissenting).

Despite viable arguments about Blakely's retroactivity, most commentators take the (slightly cynical) view that courts will seek to limit retroactivity simply because the consequences of giving Blakely retroactive effect could be so extreme. (Recall Justice O'Connor's footnote suggesting that well over 200,000 cases in the federal system alone could be impacted if Blakely was just made retroactive back to when Apprendi was decided in 2000.) I generally agree with this legal realist perspective that courts, worried about a flood of habeas petitions, will try to limit the reach of Blakely (although, of course, the same logic also supported the widely held belief that the Supreme Court would never extended Apprendi to guideline enhancements in the Blakely decision itself).

Of course, last week we already had evidence of court efforts to limit the retroactive reach of Blakely when the Eleventh Circuit, In re Dean, held that Blakely cannot form the basis for authorizing a second or successive habeas filing (background here). And I have now come across another example of a court speaking to Blakely's possible retoractivity. In State v. Burch, 2004 WL 1557822 (Minn. App. July 13, 2004), an unpublished intermediate appellate court state case, we get this noteworthy discussion of the retoractivity issue:

Although Blakely, which is based on Apprendi v. New Jersey, 530 U.S. 466 (2000), may have implications for upward departures from the Minnesota Sentencing Guidelines imposed after the Apprendi decision, appellant has failed to make a showing that Blakely will affect sentences, such as his sentence, that were final before Apprendi was decided. This court has held that Apprendi does not apply retroactively on collateral review, including postconviction. State v. Meemken, 662 N.W.2d 146, 150 (Minn.App.2003). See Schriro v. Summerlin, 72 U.S.L.W. 4561, 4563 (U.S. June 24, 2004) (stating that the holding of Ring v. Arizona, 536 U.S. 584 (2000), a case which reinforces the Apprendi requirement that a jury find any aggravating facts that lead to a greater sentence, is properly classified as procedural, and therefore does not apply retroactively to cases already final on direct review). Therefore, absent any authority that Blakely applies to appellant's sentence, we decline to address this issue.

Importantly, though this decision refuses to consider the applicability of Blakely to pre-Apprendi cases, it also states that Blakely "may have implications for upward departures from the Minnesota Sentencing Guidelines imposed after the Apprendi decision."

End of day news and commentary

The Blakely news and corresponding media coverage is growing as everyone figures out how big this story is. The Wall Street Journal (which unfortunately does not provide content on-line without a subscription) may have on Wednesday another in its series of thoughtful articles about the Blakely fall out. In addition, here's a brief (and surely incomplete) run-down of other noteworthy Blakely news.

Federal Developments: this AP story reports that U.S. District Judge Stewart Dalzell (ED Pa.) sentenced Frederick Leach to a 15-year term in a drug case instead of the guideline recommended 30-year term citing Blakely; Martha Stewart's sentencing is scheduled for Friday though U.S. District Judge Miriam Goldman Cedarbaum has not yet ruled on Stewart's lawyers' request to declare the federal sentencing guidelines unconstitutional -- this thoughtful article details the strategic challenges Stewart faces in deciding whether to speak at the sentencing.
MORE: This article dicusses Blakely issues in a Virginia District Court; this article reports that U.S. District Judge Michael J. Reagan of SD Ill. has continued all his sentencings to September or October; this article reports that U.S. District Judge John Manos has concluded that "the Blakely case does not affect federal law"; and this article quotes Deb Phillips of the U.S. attorney's office in Nashville saying, ''Right now, [Blakely will] just be a blip.''

State Developments: according to this article, Tennessee Criminal Court Judge Rebecca Stern sentenced a man convicted of raping an 82-year-old woman to a minimum 25-year sentence on Monday and said her sentence was limited by the Blakely ruling; and according to this article, Washington State Superior Court Judge Richard Strophy reduced by 19 months the sentence of a convicted murderer Monday relying on Blakely.

Other Commentary: Jason Hernandez over at the Blakely Blog provides this thoughtful run-down of issues raised during today's Senate hearing; Professor Kyron Huigens over at Punishment Theory continues his analysis of the problems he has with Justice Breyer's metaethics.

My own two cents: I found the Senate hearing very heartening with its consistently thoughtful and balanced discussion of many tough issues and its hints that at least a few Senators might want to re-think some major elements of the existing federal sentencing scheme. In the debate over the current "chaos" and the need for a quick fix, I continue to think it is very signficant that the USSC asserts "that a majority of the cases sentenced under the federal guidelines do not receive sentencing enhancements that could potentially implicate Blakely." USSC Written Testimony at p.2 (emphasis added). Finally, since DOJ representative Willaim Mercer's suggested that the time for legislative action might be in August, I am fearful that DOJ, if it feels that judges are low-balling sentences post-Blakely, will return to the Hill later this summer to seek a pro-prosecution "fix."

Revised King-Klien Beyond Blakely

I am pleased to be able to provide here a revised and updated version of the stunningly comprehensive (still draft) article by Professors Nancy J. King and Susan R. Klein concerning the post-Blakely world entitled "Beyond Blakely." This draft incorporates the significant circuit court rulings this week.
Download revised_kingklein_beyond_blakely_july_13.pdf

What the....? (aka The 9th Circuit mumbles)

Late yesterday I noticed this Ninth Circuit "Order of Remand" in US v. Epis, which cites Blakely. Here's the full text of the order:

This cause came on for hearing before the court on June 16, 2004. The Supreme Court of the United States has now granted certiorari in Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003), cert. granted (U.S. June 28, 2004) (No. 03-1454), which is a related case dealing with the growing and use of marijuana for medicinal purposes. This court now remands this case to the district court for reconsideration of the judgment following the decision by the Supreme Court in Raich. If, after considering any application of Raich to this case, the district court determines that Epis’s conviction should remain in tact, the district court should then proceed to re-sentence Epis in a manner consistent with the Supreme Court’s decision in Blakely v. Washington, 542 U.S. ___ (2004) 2004 WL 1402697 (June 24, 2004). The panel of this court retains jurisdiction pending reconsideration by the district court.

I did not post this decision because I came to the conclusion that this was just one of a number of cases I've seen (especially from state courts) remanding for reconsideration in light of Blakely. See, e.g., State v. Beaulieu, 2004 Minn. App. LEXIS 774 (July 6, 2004). However, a reader from the Ninth Circuit wrote in to say this opinion shows that "The Ninth Circuit appears to have weighed in, albeit somewhat cryptically, on Blakely on the same side as the Seventh Circuit." When I wrote back to say that I was reading this text narrowly as not weighing in on the merits, the reader responded:

"You are not alone in that [reading], since it [remanded] without any reasoning or explanation. But given the stare decicis rule in this circuit, it is hard to assume that since it is a published decision and it clearly directs the district court to apply Blakely in sentencing it does not have the same effect on all sentencing decisions in the circuit until overruled by either the court en banc or the Supreme Court. On the other hand, who can make much sense out of the whole Blakely morass?"

Can the smart folks out there with your Federal Courts books open help us figure this one out??

UPDATE: In the comments, the view seems to be that this is not a ruling on the merits or of any defined consequence. It also appears that a more definitive discussion of Blakely should be coming from the Ninth Circuit soon.

A means for Supreme Court (re)consideration

I knew I saved my old edition of Hart and Wechsler's The Federal Courts and The Federal System for a good reason. It makes for a great little read on the certification procedure employed yesterday by the Second Circuit. In my yellowed Third Edition at pp. 1836-40, the section concludes with this choice quote from Wright et al.: "The sooner [abolition of certification] is accomplished by statutory amendment, the better."

Meanwhile, I now have word of another development that calls for pulling out the history books. Today Professor Rory Little, new counsel for the State of Washington, has told me about the filing of an "Application for Extension of Time to File a Petition for Rehearing on Behalf of the Respondent State of Washington." In other words, the State of Washington has plans to seek Rehearing of the original Blakely decision, even though the US Supreme Court apparently has not substantively granted a merits rehearing petition in nearly 50 years.

I have attached at the bottom of this post a pdf version of the petition, and here's the key part of the substantive argument:

Washington candidly recognizes that rehearing in this matter is legitimately viewed by many as unlikely. However, we believe the case merits the fullest possible attention at this juncture. This Court seems certain to soon grant merits hearings to other jurisdictions on the validity of their own sentencing regimes under Apprendi and the reasoning in Blakely.... We do not believe that the State of Washington fairly should be compelled to suffer the first blow as other jurisdictions continue to argue the implications of this Court’s closely-decided cases in this area. Rather, Washington should be permitted to participate in what will apparently be the definitive re-argument of the issues.

In dialogue with me about this effort, Rory thinks the Court should ultimately grant rehearing of Blakely itself as a matter of "fair Federalism." The idea is based on the sensible notion that, perhaps quite soon, the High Court is going to have a major "Apprendi day" in which the first principles of Apprendi will be re-examined. Says Rory: "If they are going to allow every other jurisidiction to argue that their regimes are distinguishible, why should Washington State have been made to walk the plank (so to speak) alone? Perhaps no one will change their mind. But if one did, Washington will have suffered a very unfair blow. The next arguments will NOT be simply about 'are the guidelines constitutional under Blakely.' They will inevitably and ineluctably go quickly to 'what is the bedrock constitutional theory that is operating here?' Rehearing of the case that stimulated that path is not just appropriate, but fair."
Download extension_rehearing_petition.pdf

Another helpful (future FSR) resource

I have just received from Professor Stephanos Bibas — who, to my knowledge, is the first law professor ever to have his AALS directory entry cited in a Supreme Court opinion, see Blakely, slip op. at 16 — a draft of the article he is preparing for the forthcoming special issue of the Federal Sentencing Reporter covering Blakely. Entitled "Blakely’s Federal Aftermath," it's another stunningly impressive effort to take stock of the post-Blakely federal sentencing landscape. Here's a key introductory paragraph noting the paper's themes and coverage:

Blakely raises far more questions than it resolves. In this limited space, I will try to address five clusters of issues. Part I will discuss how far Blakely is likely to go, and in particular whether it reaches the Federal Sentencing Guidelines. Part II addresses a host of transitional issues, especially what is left of the Federal Guidelines if Blakely applies to them. Part III discusses possible Blakely fixes or patches. Part IV considers briefly how plea bargaining might look different in a post-Blakely world. Finally, Part V muses on some of the fascinating jurisprudential issues raised by Blakely, such as the tension between formalism and pragmatism and the role of 18th-century history in our 21st-century world.

Stephanos has noted this "draft is preliminary," though "people are free to cite it." He welcomes suggestions for additions and changes in the next few weeks before the Federal Sentencing Reporter issue is ready to goes to press. Here's the document in pdf form:
Download bibas_blakelys_federal_aftermath.pdf

Written Senate testimony and comments

As promised earlier, I can and will now post here copies of the written Senate testimony that I have in hand which may not be otherwise available. In addition, as of this writing, you can find (only) the testimony of DOJ representative Bill Mercer and the statement of Senator Orrin Hatch on the Judiciary's Committee's official site here. I encourage readers to use the comments to discuss what they might have thought was especially noteworthy in these proceedings (or anything I missed in my summaries). I will also post additional testimony as I receive it and it is not otherwise available 9and recall you can access my testimony here).

Here's Judge Paul Cassell's written testimony (which has the most comprehensive account of Blakely coping efforts by district courts that I've seen):
Download cassell_final_blakely_senate_testimony.pdf

Here's Ronald Weich's written testimony (which thoughfully details key considerations for thinking about short-term and long-term congressional fixes):
Download final_ron_weich_senate_testimony.doc

AND NOW I also discovered that the US Sentencing Commission has posted here the joint testimony of Commissioner John R. Steer and Judge (and Commissioner) William K. Sessions, III.

AND NOW Jason Hernandez over at the Blakely Blog has pdf versions of the testimony of Rachel Barkow and Alan Vinegrad here.

UPDATE: It now appears that all of the testimony (in html form) can now be found on theJudiciary's Committee's official site here.

Panel 2 Senate hearing highlights

After introductions, the Senate hearing's second panel got off to a fiery start by the usually fiery Professor Frank Bowman. He effectively hightlighted that Blakely is not the real problem, but a symptom of "profound, on-going, systemic dysfunction" in the federal sentencing system. He then stressed that there really is turmoil in the federal courts and that all the rapid court rulings are a sign of the coming "national judicial trainwreck." Frank said the new prospect, after the Fifth and Second Circuit decisions, of rapid Supreme Court consideration of Blakely's impact in the federal system changed his view about whether a quick congressional fix was needed now. But he also (rightfully in my view) highlighted that even a quick decision from the Supreme Court would not likely solve the uncertainty in the courts now or the underlying problems with the federal sentencing system.

Professor Rachel Barkow followed by stressing her concerns about the historic place of juries in the criminal justice system. She criticized the "Bowman proposal" (background here) for being a short-term fix that does not safeguard the place of juries, but only safeguards the place of the existing guidelines. She suggested an alternative short-term fix would be to make the guidelines simply advisory, and she advocated a long-term fix in which there is an effort to identify a short list of core aggravating circumstances that for all cases should be treated as distinct elements leading to full trial rights.

Ronald Weich highlighted the challenge that Blakely creates for effectively balancing competing concerns of fairness in sentencing, and he noted that his written testimony highlighted a range of fairness worries in federal sentencing even before the Blakely ruling. He then suggested Congress should do nothing in the short term, but if feeling compelled to do something, the only thing Congress should consider would be to make the federal guidelines simply advisory (which, he highlighted, would only require changing only one provision of the current US Code).

Alan Vinegrad urged short-term and long-term responses, and said some short-term action may be needed in part bacause an additional decision by the Supreme Court would not alone stem the on-going turmoil. Without specifying a short-term fix, he then outlined in some detail his approach to a long-term fix. But Senator Jeff Sesssions quickly followed up by suggesting that his proposed long-term fix was an effort to just "split the baby in half" which might not be viable. Alan, in turn, said he thought such compromises were exactly what gets done in the halls of Congress.

In questions, Senator Jeff Sesssions (who was now presiding) did his very best to argue that the Blakely decision ought to be reversed and he even predicted that "Justice O'Connor's view would ultimately prevail." He thereafter engaged in a dialogue with all the witnesses about deeper problems with the federal guideline system, and then came even closer to calling Justice Scalia an activist judge in a loaded question to (former Scalia clerk) Rachel Barkow concerning whether Justice Scalia would strike down any sentencing system he did not like. Senator Sesssions also indicated that he thought the statutory "25% rule," which defines the limits of the federal sentencing ranges under the current guidelines, might too tightly limit judicial discretion. Frank Bowman jumped in to stress his view that this "25% rule" is a significant structural impediment to meaningful federal sentencing reform.

Panel 1 Senate hearing highlights

The Senate hearing's first panel just ended, and it is all so interesting and thoughtful I'm not sure I can summarize it effectively. This is a "must-see" event now and in repeats (at least for sentencing geeks like me). The opening statements by Senators Hatch, Leahy, Kennedy and Sessions were rich and generally balanced. And all the panel speakers were effective in spotting the many challenging issues post-Blakely, although no firm solutions were put forth.

There did seem to be, however, a general consensus that, in Judge William Sessions' words, the "sky is not falling." Commission Vice-Chair Steer stated that, based on an examination of USSC data, he thought "only a minority" of all federal cases had Blakely problems. And other witnesses stressed the many coping efforts that courts and prosecutors are employing.

All five witnesses counseled caution in any congressional response, and Leahy's first question clarified that noone on the panel was asking for immediate congressional intervention. However, Hatch's first question suggested he thinks there might be a "crisis" that needs to be addressed. And Senator Jeff Sessions asserted that Blakely was the most consequential case in American criminal history, which was creating a "chaotic" situation. (Senator Sessions was especially critical of the Supreme Court's Blakely ruling, and he seemed to come amazingly close to calling Justice Scalia an activist judge!)

But all the witnesses stressed in responses that a short-term fix was not essential, and perhaps not effective, to deal with any perceived "crisis." DOJ representative William Mercer stressed that the problems created by Blakely really was a case-by-case story, and he suggested that August might be the time when the dust had cleared enough to figure out whether a fix was necessary. (Also, DOJ's Mercer got a nice bit of lashing from Leahy for inconsistencies between DOJ's advocacy of the Feeney Amendment and its claim now that the independency of the USSC distinguishes the federal guidelines from the state guidelines struck down in Blakely. And then Kennedy started his question period by lamenting the way the Feeney Amendment was passed. He then forcefully asked Mercer if he supported the judge-specific reporting requirements in that legislation while suggesting that this provision should be re-considered. What goes around come around!)

Interestingly, Senator Durbin made a very nice capital punishment analogy at the start of his questioning: he highlighted that Illinois Governor Ryan's death penalty moratorium lead to a healthy re-thinking of capital punishment practices, and then suggested that Blakely can likewise lead to a healthy re-thinking of 20 years of federal guideline sentencing. He asked whether it was time for "a fresh look at the whole concept" of sentencing guidelines in the federal system, and wondered whether we "could get the the bottom of Blakely" without a complete re-examination of fairness in federal sentencing.

Finally, I got to hear Senator Hatch enter my co-authored written testimony into the record. Cool!

Line-up cards are now complete

At the Senate Judiciary Committee's site here, you can find the complete list of witnesses for today's hearing (as well as the webcast link). Here's a scorecard so you can tell the players:

Witness List for Hearing before the Senate Committee on the Judiciary on "Blakely v. Washington and the Future of the Sentencing Guidelines" Tuesday, July 13, 2004 Senate Dirksen Office Building Room 226 at 10:00 a.m.

Panel I:
The Honorable Bill Mercer, United States Attorney, District of Montana, Helena, MT
The Honorable John Steer, Vice Chair and Commissioner, United States Sentencing Commission, Washington, D.C.
The Honorable William Sessions, Chief United States District Judge, District of Vermont, Burlington, VT, Vice Chair and Commissioner, United States Sentencing Commission, Washington, D.C.
The Honorable Lawrence L. Piersol, Chief United States District Judge, District of South Dakota, President, Federal Judges Association, Sioux Falls, SD
The Honorable Paul G. Cassell, United States District Court Judge, District of Utah, Salt Lake City, UT

Panel II:
Frank Bowman, Professor of Law, Indiana University Law School, Indianapolis, IN
Rachel Barkow, Assistant Professor of Law, New York University School of Law, New York, NY
Ronald Weich, Esq., Zuckerman, Spaeder LLP, Washington, D.C.
Alan Vinegrad, Esq., Former United States Attorney, Covington & Burling, New York, NY

Apparently C-Span 2 is showing the debate over the marriage amendment live rather than this hearing, but I think the webcast will be just as good for those near a computer.

Grab your popcorn, the show's about to start!

Now on deck...

Today's the day for the Senate Committee on the Judiciary's hearing on “Blakely v. Washington and the Future of the Federal Sentencing Guidelines.” Lots of background details about the 10am hearing (and how to hear it live) are here and here and here and here. The Committee's offical site does not yet have links to testimony, though you can access written testimony I submitted with my co-authors here and I will post other testimony I have received later today.

And while we're talking baseball, here's an article noting Utah's Chief District Judge Dee Benson's view that unless the federal guidelines are overturned by the high court, he will consider them valid. As the article details, apparently Judge Benson has cast the guidelines in the role of the Florida Marlins, with Judges Cassell and Posner and others finding the guidelines unconstitutional becoming the Chicago Cubs. The sure thing, according to Judge Benson, sometimes disappears:

Just last October, thousands of Chicago Cubs fans were certain of their team's first World Series appearance in [58] years, with a mere five outs to make against the Florida Marlins. ... Then one of the Cubs' own fans interfered with the catch of a foul ball, and the unraveling began. As Mark Twain observed in 1897 that 'the reports of my death are greatly exaggerated,' the sentencing guidelines may similarly defy present expectations of their impending demise.

Can the Kansas system work for the feds?

Because it's late, readers will have to make up their own Wizard of Oz jokes as we consider the virtues of following the yellow brick road of sentencing reform to Kansas. The New York Times today has an article suggesting "Justices' Sentencing Ruling May Have Model in Kansas." In a similar vein, The National Association of Criminal Defense Lawyers' (NACDL) has sent a letter to Senators Hatch and Leahy (available here thanks to our friends at TalkLeft), in which it is suggested that the Kansas approach of having a bifurcated trial to allow jury consideration of sentencing enhancements is the best way to give meaning to the constitutional rights announced in Blakely. I'll be interested to hear if the Kansas approach gets discussed at any length during the Senate Judiciary Committee hearing later today.

Monday Recap: Jurisprudential Home Run Derby

With so much happening on Monday -- a dozen posts without covering all I heard -- I thought a quick recap of highlights might be of use. Though I won't be able to equal the play-by-play of the ESPN folks on during the MLB Home Run Derby, I will try to pepper this recap of the jurisprudential moonshots with a little helpful commentary.

1. The day started with lots more news of interesting developments in various federal district courts (see here and here and here). Not included in earlier reports was the news I received from DC that District Judge Ellen Huvelle in US v. Alston-Graves held the Guidelines "invalid" per Blakely and also held that enhancements are not severable from the rest of the Guidelines. And I heard from a reporter that EDNY District Judge Jack Weinstein convened a federal jury trial solely to decide on a defendant's sentence. It would seem that the federal guidelines are being declared unconstitutional in many district courts, with a wide variety of remedies being explored.

2. Then, around mid-day, the Fifth Circuit issues its opinion in US vs. Pineiro holding the federal sentencing guidelines constitutional (details here). The reasoning tracks Judge Easterbrook's points in dissent from the Seventh Circuit's contrary holding in US v. Booker from Friday (details here), stressing the distinctions between the statute-based guideline scheme at issue in Blakely and the administrative-agency-based guideline scheme in the federal system. Among the interesting features of Pineiro is that, factually, the defendant could claim great prejudice from not having respected his "Blakely right" to jury findings beyond a reasonable doubt: his enhancements were based on the sentencing judge's drug-quantity fact-finding after a jury refused to make the same findings at trial and on the judge's questionable leadership role finding based on evidence that "was conflicting on many issues."

3. Not missing another chance to be first, Judge Paul Cassell of Utah then issued another opinion in US v. Croxford to address final arguments the government raised in defense of the guidelines (details here), and in this opinion Judge Cassell was the first to respond directly to Judge Easterbrook's and the Fifth Circuit's efforts to find Blakely inapplicable to the federal guidelines. Judge Cassell reaffirmed his initial declaration of the guidelines as unconstitutional, and in so doing also became the first to cite this blog in a written opinion (see footnote 33). He also, I believe, gets credit for being the first to describe the US Sentencing Commission as an "odd duck."

4. Appropriately batting clean-up in this order, the Second Circuit closed the day by handing down, in banc, US v. Penaranda, which sought to clean up the federal mess by certifying three questions about Blakely's reach to the Supreme Court (details here). In addition to taking a slight swipe at Judge Cassell for heavy reliance on the Blakely dissents in his Croxford opinions (see footnote 6), the Second Circuit decision became the first circuit court opinion to cite this blog (see footnote 9). More importantly, the Second Circuit makes in Penaranda a compelling argument for swift action by the Supreme Court. It notes that thousands of past, present and future federal cases are in doubt after Blakely, and urges "an expedited briefing and hearing schedule, in order to minimize, to the extent possible, the impending crisis in the administraton of criminal justice in the federal courts."

Helpfully, many of these developments (and even some others) are reviewed in this Washington Post article.

Certified for great commentary

Not surprisingly, the Second Circuit's decision in US v. Penaranda to dust off 28 U.S.C. § 1254(2) to certify question to the Supreme Court has generated thoughtful buzz in the blogsphere. Read here the thoughts of Eugene Volokh at The Volokh Conspiracy or those of Marty Lederman at the SCOTUSBlog or those of Larry Solum at Legal Theory. Marty's commentary is especially insightful for noting that "in the certified questions, it does not appear that the court has asked the Supreme Court to resolve the statutory implementation, or 'severability,' question in the event it rules that the Guidelines are constitutionally infirm." (I have noted challenging questions surrounding severability here.)

For all those academics and law students whose draft articles and notes may not survive Blakely, perhaps we can take comfort that the lower courts are doing their best to create great new topics for commentary.

The 2d Circuit Speaks (in banc)!!

Okay, just when I thought the story couldn't get any better, we get this capper on an incredible day. The Second Circuit Court of Appeals, in US v. Penaranda has issued an opinion, in banc, concerning Blakely. How does it come down, you ask. It doesn't -- rather the Court has certified three questions to the Supreme Court of the United States!!!

That's right everyone, it's time to get those Federal Courts textbooks off the shelf because the Second Circuit has fired the biggest jurisprudential firework to date. I've not yet had a chance to consume the whole opinion, which can be downloaded here or obtained through a few clicks from this site, but its looks like another incredible chapter in this evolving story. In addition, I am very proud to say that the Second Circuit also is the first court to give me the honor of seeing this blog cited (see footnote 9).

Download 2d_circuit_penaranda.pdf

Here's how, at the close of the opinion, the court articulates the three certified questions:

To afford the Supreme Court an opportunity to adjudicate promptly the threshold issue of whether Blakely applies to the federal Sentencing Guidelines, we therefore certify the following three questions (the first pertains to both cases pending before us, the second to Penaranda’s case, and the third to Rojas’s case):

1. Does the Sixth Amendment permit a federal district judge to find facts, not reflected in a jury’s verdict or admitted by a defendant, that form the basis for determining the applicable adjusted offense level under the federal Sentencing Guidelines and any upward departure from that offense level?

2. In a case where a jury has convicted a defendant of possessing with intent to distribute five kilograms or more of cocaine and one kilogram or more of heroin, does the Sixth Amendment permit a federal district judge to determine, under the federal Sentencing Guidelines, the quantity of drugs for which the defendant is responsible and upon which his base offense level and corresponding sentencing range will be calculated, under U.S.S.G. § 2D1.1?

3. In a case where a defendant has pled guilty to conspiring to distribute five kilograms or more of cocaine, does the Sixth Amendment permit a federal district judge to determine, under the federal Sentencing Guidelines, (a) the quantity of drugs for which the defendant is responsible and upon which his base offense level and corresponding sentencing range will be calculated, under U.S.S.G. § 2D1.1, (b) the applicability of a two-level enhancement to the base offense level for carrying a gun in connection with the offense, under U.S.S.G. § 2D1.1(b)(1), and (c) the applicability of a three-level managerial role enhancement under U.S.S.G. § 3B1.1(b)?

P.S. Those of you who might think the use of "in banc" (rather than "en banc") is a typo need to brush up on the collective writings of my former boss, Judge Jon O. Newman.

Judge Speedy — I mean Cassell — speaks again

Though I will let someone else call him Superman, I will say that Judge Cassell is faster than a speeding bullet (or should I say faster than a speeding modem). Though I find it hard to believe, Judge Paul Cassell has already issued another opinion in US. v. Croxford (background here and here), in which the Judge responds to the Seventh Circuit's Booker decision (background here) from this past Friday, and he also reponds to the Fifth Circuit's decision in Pineiro (background here), which was handed down only a few hours ago!!
Here's a link to access all three Croxford decisions.
UPDATE: My quick review of the opinion yesterday missed the exciting news that this blog, and the article by Professors King and Klein available here, are cited in footnote 33. Cool.

I can also report that Judge Cassell is yet another all-star sentencing mind slated to speak at tomorrow's Senate Judiciary Committee hearing. Not only is that good news because the Senate should hear from as many bright, thoughtful persons as possible, but it also means that I can hope to catch up on my required Judge Cassell reading while he's busy with the Senators.

The ABA weighs in on Blakely

I have just received a copy of the letter sent by the American Bar Assocation President Dennis Archer to Senators Hatch and Leahy, which aparently responds to a letter from the Senators asking for the ABA's views on Blakely. The letter is available for downloading here:
Download aba_blakely_letter.doc

The whole (brief) letter is an interesting read. Here are some choice quotes:

On behalf of the ABA, I urge the Committee not to respond in haste to the decision in Blakely.... Though the implications of Blakely may be considerable, prudence counsels that congressional action should await development of case law on the applicability of Blakely to the Federal Sentencing Guidelines... [T]oo hurried a response may result in unintended consequences that run counter to the fundamental tenets of prevailing sentencing theory and Blakely’s constitutional underpinnings.

We are particularly opposed to any reform measures, whether interim or permanent, that compel waiver of Blakely rights. ... [A]ny law or policy that relies upon the ability to force defendants to waive their constitutional rights for its effect must be regarded as extremely problematic in a just society.

The 5th Circuit Speaks (and we have a circuit split)!!

I have just heard that the Fifth Circuit just held the federal sentencing guidelines constitutional in US vs. Pineiro, no. 03-30437. Here's the link. Chief Judge King, writing for a unanimous panel that included Judges Barksdale and Pickering, says at the outset:

This court assuredly will not be the final arbiter of whether Blakely applies to the federal Guidelines, but the unremitting press of sentencing appeals requires us to produce a decision. We have undertaken to discern, consistent with our role as an intermediate appellate court, what remains the governing law in the wake of Blakely. Having considered the Blakely decision, prior Supreme Court cases, and our own circuit precedent, we hold that Blakely does not extend to the federal Guidelines and that Pineiro’s sentence did not violate the Constitution.

In Pineiro, the presentence report held the defendant responsible for amounts of drugs much greater than the amounts found by the jury at trial and further recommended a sentence enhancement for his leadership role in conspiracy. [N.B.: iffy facts on the leadership role issue suggests that this is a case where the burden of proof, and not just the fact-finder, could be significant]. The Fifth Circuit worked through all the past federal decisions finding the federal guidelines scheme constitution and explained:

Undeniably, Blakely strikes hard at the prevailing understanding of the Guidelines. The Guidelines, unlike Washington’s Sentencing Act, are not statutes, but they are nonetheless binding on sentencing courts. ... But Blakely, which did not actually involve the federal Guidelines, is not the only case that we must consider. While we are bound to follow Blakely, as an inferior court we are also bound to examine the Supreme Court’s prior pronouncements and guidance regarding the nature of the Guidelines. That examination reveals that a number of the Court’s prior cases, including cases that reject various constitutional challenges to the Guidelines, are founded on the proposition that there are constitutionally meaningful differences between Guidelines ranges and United States Code maxima....

These cases, and others like them, do not discuss the Sixth Amendment right to a jury trial, and we do not pretend otherwise. What is true, however, is that the Supreme Court has repeatedly blessed the Guidelines and upheld them against sundry constitutional challenges, often employing the proposition that the United States Code, and not the Guidelines, establishes maximum sentences for offenses. The Supreme Court’s cases, and ours, have articulated a particular vision of the interaction between the Guidelines and the United States Code, and it is a vision that has held constitutional meaning. To reject that view of the Guidelines would not directly 'overrule' any Supreme Court holding--a prerogative reserved unto the Court itself--but it would plainly create an unsettling tension with them....

Given the nature of the Guidelines, we think the better view--and one that respects the prior decisions of both the Supreme Court and this court--is that the relevant 'offenses' and 'maximum punishments' are those defined and authorized by Congress in the United States Code. Judicial findings under the Guidelines that set sentences within that authorized range therefore do not offend the Constitution.

Following Tuesday's Senate Judiciary Hearing

The crackerjack staff at The Ohio State University Moritz College of Law library have reported to me that Tuesday's Senate Hearing about Blakely, scheduled for 10am, will be webcast. This link here brings up a page with a webcast link for when the hearing gets going. The report also indicated that the hearing would be broadcast on C-Span at some time, but the broadcast schedule has not been set. C'mon C-Span, what could possibly be more important than live Blakely hearings? And please, C-Span, at least set a schedule so I can program my TiVo!

My two cents (and those of my casebook co-authors)

Along with the wonderful co-authors of my sentencing casebook, Sentencing Law and Policy: Cases, Statutes, and Guidelines, I have prepared written testimony that I hope might in some small way have some impact at tomorrow's hearing in the Senate Judiciary Committee. You should find it here attached. The theme and advice to Congress is captured in the first two words of our title, which is "Go Slow: A Recommendation for Responding to Blakely v. Washington in the Federal System."
Download final_bermanmillerdemleitnerwright_blakely_sen. Jud. Comm. Testimony (7.13.04).pdf

Another district, another finding of unconstitutionality

They are now coming fast and furious: In US v. Lamoreaux, Western District of Missouri US District Judge Howard Sachs explains his approach in light of his conclusion that Blakely renders the federl guidelines unconstitutional. In a short but sweet opinion linked below, he says:

I have indicated in several courtroom proceedings that I find more persuasive the ruling of Judge Cassell in United States v. Croxford, 2004 WL 1462111 (D.Utah 2004) concluding that we have a constitutionally failed system of sentencing, and must disregard both base offense levels and enhancements as mandatory calibrators at sentencing in the wake of Blakely. Guideline provisions seem generally incapable of being severed in a sensible fashion. Unless and until a new system is devised, I anticipate using pre-Guideline methods of sentencing, giving due deference to facts and factors developed for sentencing use–but of course subject to statutory restrictions.

Download lamoreaux_opinion.pdf

In a NY State of Mind

More big news from NYC: according to this NY Lawyer article, a second Eastern District of New York judge has found the federal sentencing guidelines unconstitutional after Blakely. According to this account:

Judge Nina Gershon on Friday sentenced a defendant who had challenged the guidelines to a maximum of 5 years in prison for lying to FBI agents about his relationship to a Yemeni sheik who allegedly raised money for al Qaeda. Lying to an FBI agent is punishable by 0 to 5 years in prison, but would generally result in 6 months. Prosecutors sought the highest sentence, saying it was warranted by a terrorism relationship as defined in the guidelines.
The jury, however, was not asked to decide whether defendant Numan Maflahi had lied to disrupt a terrorism investigation, only whether he had made a false statement. His attorney argued that the guidelines were unconstitutional and would not allow Mr. Maflahi to receive a more severe sentence based on a fact not found by the jury.
Ruling from the bench, Judge Gershon agreed that Blakely rendered the guidelines unconstitutional. But she said she was then left with the discretion to sentence the defendant and sentenced him to 5 years.

Harsher post-Blakely sentences?

There's reference in the Newsday article linked here to a sentence made harsher following a ruling that the federal guidelines are unconstitutional. Here's the passage:

Alan Vinegrad, the former Brooklyn U.S. attorney now at Covington & Burling, noted that last week lawyers for a defendant convicted of making false statements asked a Brooklyn federal judge to toss out the sentencing guidelines, which called for 10 to 16 months. The judge agreed, but then imposed a five-year term. "File that under 'Be careful what you wish for,'" Vinegrad said. "It may well be that Martha Stewart could do worse if the judge did not have the constraints of the guidelines."

I am very interested, and would like to hear about, the details of this case or any others in which a judge imposed a sentence higher than provided for under the guidelines (absent an upward departure) in this post-Blakely world.

Lots of media coverage

The media is starting to get wind of how big the Blakely story is. Here are articles about Blakely and its aftermath from USA Today, "High court ruling sows confusion", from NY Newsday, "Ruling throws cases in tailspin", from the Seatle Post-Intelligencer, "'Utter chaos' means less-severe sentences for serous crimes", and from the Tampa Tribune, "Confusion Rules In Federal Courts".

Here's a particularly thoughtful piece from the Baltimore Sun, "Sentencing policy on trial".

The "Bowman Proposal": White Knight or Force of Darkness?

During the coming week, and especially during Tuesday's Senate hearing, we will likley hear a lot about the "Bowman proposal." This will be a reference to an ingenious Blakely-fix that Professor Frank Bowman suggested in a memo sent to the US Sentencing Commission three days after Blakely was decided. The essence of the proposal is a legislative fix to essentially take the top off the existing guideline ranges -- i.e. "amend the sentencing ranges on the Chapter 5 Sentencing Table to increase the top of each guideline range to the statutory maximum of the offense(s) of conviction." The idea is that then guideline calculations technically become adjustments to only minimums and have no impact on applicable maximums. The current buzz is that this fix is the leading candidate for congressional action in response to Blakely.

Professor Bowman's memo in support of this approach is brilliant and a required read for anyone thinking about what should happen now. Here is a copy of Frank's original memo to the USSC (which I know has already been widely circulated):
Download frank_bowman_original_memo_to_ussc_on_blakely.doc

Frank has asked me to highlight that his original proposal and thoughts have evolved a bit since this original memo was sent. He wanted me to stress that "the version now receiving most consideration would (a) be sunsetted, and (b) include a right of appellate review on an abuse of discretion standard for any sentence above the guideline minimum, and that one consideration in the abuse of discretion determination would be whether the sentence was 6 months or 25% greater than the minimum." Frank may have a final "new and improved version" of his legislative proposal for me to post in the next few days.

This proposal has engendered diverse reactions and diverse predictions about what would happen if it became law. It has emerged as a compromise, short-term solution that might or might not be a great way for Congress to start dealing with Blakely, but likely has the most chance of any suggested proposals. With this memo now in hand, I will leave you to decide for yourself whether the Bowman proposal should be championed as a white knight or a force of darkness in the post-Blakely world.

Blakely's impact in the other Washington

With a big week ahead as the folks in Washington DC cogitate about how to deal with Blakely in the federal system, we should recall that it was the other Washington which got this whole Blakely ball rolling. And, proving the impact will be consequential there, too, here's an article from Washington state detailing a case of a "businessman who stole $215,000 from his ailing stepmother [who] will be released from prison about 2.5 years early" due to Blakely problems in the extraordinary sentence he originally received.