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September 18, 2004

Questions and more questions

I want to say thanks again to the HLS Federalist Society for inviting me to participate in their event yesterday, at which I learned so much from my thoughtful co-panelists. Yet, as seems true for all my Blakely experiences, I came away from the Harvard discussion with a lot more questions than answers. Though a complete list of questions could go on and on, here are a few on the top of my mind right now:

1. Which Justice in the Blakely majority does DOJ really think won't want to apply Blakely to the federal guidelines? I heard in Boston yet again that DOJ is confident it will prevail in Booker and Fanfan. But, as I noted in this post, I cannot figure out which Justice they think will reverse course now. The forceful written opinions and votes of Justices Scalia, Stevens and Thomas in Apprendi and Ring (and Harris) and Blakely make it hard for me to believe they want to retreat. Perhaps the speculation is that Justices Ginsberg or Souter will have a change of heart, but their forceful opinions and votes in Jones and Ring and Harris make me doubt that they really want to exempt the federal system from Blakely. Indeed, as I suggested here, I think it is more likely Justices Breyer and Kennedy — both of whom changed sides to support the expansion of Apprendi in Ring — could join the Blakely five than that one of the five will defect now.

2. What famous case will Blakely be remembered with? I have previously mentioned here and here Blakely in the company of Gideon and Miranda, and others have mentioned non-criminal cases like Brown and Roe. But one HLS panelist interestingly asserted that Blakely will be remembered more like Lochner than like Brown. Of course, as I suggested at 37 Crim. L. Bull. 647-49 a few years ago, I really think the best parallel for the Apprendi/Blakely line is probably the capital sentencing decision in Furman. However, that analogy would have really fit if the High Court had used Blakely to narrow Apprendi in the way that in Gregg the Court narrowed Furman. Instead, of course, Blakely expanded Apprendi and so now we are in uncharted territory.

3. How much AUSA time has been spent filing 10,000+ superceding indictments, and how much more AUSA time will be spent re-doing all this work if DOJ prevails in Booker and Fanfan? I heard that perhaps around 100 superceding indictments have been filed in the District of Massachusetts alone this summer. Considering that there are 93 other federal districts, many much larger than D. Mass., it seems safe to guess that AUSAs have drafted and filed more than 10,000 Blakely-ized superceding indictments this summer. (That works out to over 150 every work day!). The irony, of course, is that if DOJ wins on either of its claims in Booker and Fanfan, all that work will need to be re-done. If Blakely is inapplicable to the federal guidelines OR if Blakely applies and the guidelines are not severable, all the Blakely-ization in indictments will be surplusage, and AUSAs will have 10,000+ indictments to redo again.

Finally, the biggest question on my mind now merits a separate post later. But I can preview it here: Do Justice Breyer and other Blakely dissenters think the Sixth Amendment right to counsel should not apply at sentencing?

September 18, 2004 in Blakely Commentary and News | Permalink | Comments (1) | TrackBack

Democracy and Distrust

One of the many interesting and important points that Professor Bill Stuntz made at yesterday's Harvard Law School panel was that the Blakely decision seems to be trying to make the criminal justice system more democratic. Professor Stuntz then provocatively suggested that this may be what's wrong with Blakely because, according to Professor Stuntz, the criminal justice system may already be "too democratic."

Indisputably, Blakely can and should be read as a decision at least in part about democratic values. Consider, for example, this line from Justice Scalia's majority opinion: "Just as suffrage ensures the people's ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary." Slip op. at 9. Moreover, as evidenced by Judge Wilkinson's concurring opinion in Hammoud (details here) and the recent commentaries by Professors Aaron Rappaport (available here) and Vikram Amar (from Findlaw here), the SG's effort to keep Blakely from applying to the federal guidelines implicates a number of deep structural principles concerning democracy.

But, like all parts of the post-Blakely world, the democracy story is nuanced and should be carefully examined from various angles. First, of course, it should be highlighted that in the federal system neither prosecutors nor judges are democratically elected, whereas in state systems these actors typically are "more democratic." Thus, to the extent that prosecutors problematically dominate sentencing decision-making in the federal system — as suggested by the likes of Judge William Young here and Professor Marc Miller here — perhaps the federal system could indeed do better by becoming more democratic (at at least more accountable) at the case-specific level.

Second, like so much else in the world of sentencing, the meaning and value of democracy is often in the eye of the beholder. Recall, for example, that Justice Thurgood Marshall in Furman relied on democratic principles when voting for judicial abolition of the death penalty because he hypothesized that a fully informed electorate would reject capital punishment (see 408 U.S. 238, 360-63 and here for background on the "Marshall hypothesis"). And, of course, Judge Marvin Frankel, the father of guideline sentencing reforms, urged that sentencing law be developed by an unelected "Commission on Sentencing" because on important sentencing issues "legislative action tends to be sporadic and impassioned, responding in haste to momentary crises, lapsing then into the accustomed state of inattention." Criminal Sentences: Law Without Order at p. 119.

Finally, since criminal defendants might be considered the ultimate "discrete and insular minority," the democracy angle leads me to wonder what Professor John Hart Ely, author of the rightly legendary Democracy and Distrust, might have thought of Blakely. Given that, according to this bio, Ely played a role in the Gideon decision and practiced as a criminal defense lawyer before going into the academy, I have to think he would have far more praise than scorn for Blakely.

September 18, 2004 in Blakely Commentary and News | Permalink | Comments (2) | TrackBack

September 17, 2004

Sports Omens?

I do not want to turn everything into a Blakely/ Booker story, but the Red Sox scoring two runs in the Ninth to beat the Yanks has me thinking this might just be the year of the underdog. Certainly when the defendants get "big wins" from the Rehnquist court in cases like Blakely (and Crawford) in opinions by Justice Scalia, something of perhaps cosmic proportions is afoot. Let's see what's in store the rest of the weekend.

September 17, 2004 in Blakely Commentary and News | Permalink | Comments (0) | TrackBack

I'm back, and have so much to say

I am back home (with all my luggage), and I had a much, much better day than the apparently overmatched US Ryder Cup team. I am very thankful to the HLS Federalist Society for putting together a great panel, and I learned so much from my thoughtful co-panelists. Later tonight and over the weekend I hope to have a chance to review some insights I gained and the host of new questions I now have. But the first question for tonight is whether the pinstriped Yanks can do better on the diamond than the other Yanks did on the links. More, a lot more, later.

September 17, 2004 | Permalink | Comments (0) | TrackBack

A Dr. Seuss morning

In the grand tradition of Dr. Suess and his One Fish, Two Fish, Red Fish, Blue Fish, I present here Good News, Bad News, Cool News, Rad News:

Good News: My luggage was found, so I have clothes to wear at this HLS event this morning.

Bad News: As of this writing, the US Sentencing Guidelines look sounder than the US Ryder Cup team, which is already behind in 3 of 4 morning matches.

Cool News: Esteemed federal sentencing practitioner James E. Felman of the firm Kynes, Markman & Felman has sent me a copy of a thoughtful memo he sent to the US Sentencing Commission to address "possible legislative responses" if the "Supreme Court in Booker and Fanfan holds that the guideline maximum is the relevant statutory maximum for Sixth Amendment purposes." You can download the document here:
Download felman_blakely_proposal.rtf

Rad News: I received yesterday a copy of a motion authored by Judge John Martin on behalf of the ad hoc group of former federal judges asking the Supreme Court for ten minutes of argument time in Booker and Fanfan. The motion asserts that "the voice of those who have actual experience applying the Guidelines should be heard at oral argument."

The motion states that Judge Martin can make an argument the SG cannot; that is, that Koon v. US gives district judges broad departure power under the federal guidelines. Recall that the ad hoc judges argue in their amicus brief (available here) that this claimed discretion distinguishes the federal guidelines from Washington's sentencing scheme struck down in Blakely. (This is, of course, a tough argument given that the sentencing judge in Blakely had broad discretion when deciding to depart, and that Justice O'Connor rightly noted in her Blakely dissent that the majority "flatly rejects" the argument that it is significant that Washington's sentencing guidelines "still allow Washington judges to exercise a substantial amount of discretion.")

Among other realities, this motion suggests that Judge Martin is still on planet Htrae in the Bizarro world, because there is no mention of the Feeney Amendment (which legislatively overruled Koon's main holding), and Judge Martin is still claiming "that the federal Guidelines are analogous to an indeterminate sentencing regime because sentencing judges retain substantial discretion to depart from a Guideline sentence."

September 17, 2004 in Blakely Commentary and News | Permalink | Comments (4) | TrackBack

USA v. Europe: a sentencing Ryder Cup?

The Ryder Cup, one of my very favorite sporting events, is now underway (and the US team is already behind and playing nervous. The event has me imagining a contest between USA and Europe over sentencing law and policy. Though I am always biased for the home team, I know a lot of thoughtful observers would conclude that Europe is far ahead of the US with regard to the enlightenment of its sentencing policies.

Consider that, among his many astute points, Justice Anthony Kennedy in his speech to the ABA last year highlighted that in "countries such as England, Italy, France and Germany, the incarceration rate is about 1 in 1,000 persons. In the United States it is about 1 in 143." Justice Kennedy also mentioned the recent book by Professor James Whitman, Harsh Justice, which has as its subtitle "Criminal Punishment and the Widening Divide Between America and Europe." In his book, Professor Whitman documents the relative harshness of American punishment compared to its European counterparts and notes America's historical preference for broad criminalization and degrading criminal punishment as compared to Europe's tendency toward narrower criminal liability and punishments that preserve offender dignity.

Professor Richard Frase has recently discussed these important comparative issues in a thoughtful review of Professor Whitman's book. See Richard S. Frase, Historical and Comparative Perspectives on the Exceptional Severity of Sentencing in the United States, 36 Geo. Wash. Int'l L. Rev. 227 (2004). Among other insights, Professor Frase concurs with Professor Whitman's assessment that "sentencing is much harsher in the United States than in Europe," and he contends "this fact needs to be forcefully conveyed to the U.S. public and its leaders." In addition, Professor Frase suggests that "As Americans continue to rethink their harsh sentencing practices, they should look to European nations, and the practices described in [Professor Whitman's] book, for models of humane, efficient, and effective criminal punishment."

September 17, 2004 in Scope of Imprisonment | Permalink | Comments (3) | TrackBack

Why the federal system is not worth saving from Apprendi-land

The rulings and analysis in US v. Johns, 2004 WL 2053275 (M.D. Pa. Sept. 15, 2004), make the case legally noteworthy (details here). But the underlying facts in Johns, especially when compared to the facts in the Angelos mandatory minimum case that made headlines this week (links and stories here), provides dramatic evidence of why the federal sentencing system has not, in actuality, met the noble goals of the Sentencing Reform Act. Moreover, it also provides a strong reason why it is finally time for Justice Breyer to buy his ticket to Apprendi-land.

Recall that in the Angelos case from Utah, US District Judge Paul Cassell is struggling with the fact that federal law calls for him to impose a sentence of 63 years on Weldon Angelos, a first-time offender, following his conviction at trial on marijuana and firearm charges. In Johns, the defendant appears to merit a greater sentence since he had "numerous prior convictions," was inolved in a large drug distribution scheme involving a "substanal quantity" of crack and a firearm. But Johns' sentence was "capped" at only 4 years because a prosecutor allowed Johns to plead to a lesser offense with 4-year maximum sentence. In order words, though it seems Johns has a worse criminal record and committed a worse offense, Angelos will likely be serving a sentence more than 15 times longer because he did not cut a deal with the prosecutors.

These realities about plea bargaining and prosecutorial power in federal sentencing reinforce points made by Chief US District Judge William Young of the District of Massachusetts in his stuning pre-Blakely decision in US v. Green (details here). Moreover, they must give Justice Breyer serious pause when he considers whether federal sentencing reforms have in fact brought about "greater uniformity between real criminal conduct and real punishment." Breyer Blakely dissent at 19. Justice Breyer's dissent in Blakely highights that he has resisted a trip to "Appprendi-land" because he is concerned that Apprendi and now Blakely auger a world with more plea bargaining and a weak relationship between real conduct and real punishment. See Breyer Blakely dissent at 11. However, the Johns case help document that we already have the sort of federal sentencing world that Justice Breyer apparently fears.

September 17, 2004 in Booker and Fanfan Commentary | Permalink | Comments (2) | TrackBack

September 16, 2004

The joys of a wired world

I should have known that a hotel in Harvard Square would have a high-speed internet connection, and thus I am on-line here in Boston. Unfortunately, the airline managed to lose my luggage, so I am wired but have no wardrobe. (I have a sneaking suspicion someone here in Boston found out I am a Yankee fan and they are holding my luggage hostage.)

In any event, I am excited to be near the birthplace of the American Revolution (and the birthplace of my legal life) to talk about Blakely and constitutional structure. And I had a chance on the plane ride to give a close read to the great decision in US v. Johns (details here), as well as to re-read Blakely itself. As I will explain in a subsequent post, I am starting to think more and more that, as I suggested here, Justice Breyer may finally be ready to buy his ticket to Apprendi-land.

September 16, 2004 in Blakely Commentary and News | Permalink | Comments (0) | TrackBack

On the road again...

Blogging may be light over the next 36 hours as I head to Boston to participate in a Blakely panel at my alma matter. I hope to have internet connectivity at times, but my focus will be on saying something thoughtful at this Harvard Law School event entitled "A Supreme Mess: Blakely, Sentencing, and the Separation of Powers" thoughtfully put together by the HLS Federalist Society. If I truly had my priorities straight, I would stay in Boston to experience this weekend's Red Sox—Yankee series at a Boston pub, but instead I'll be heading home late tomorrow.

September 16, 2004 in Blakely Commentary and News | Permalink | Comments (0) | TrackBack

Great work by my research assistant

In order to create a back-up of my efforts, I asked my wonderful research assistant to cut-and-paste the text of this blog into a word-processing document. Proving his wonderfulness, my RA created four distinct Word documents with imbedded links and a TOC to make it easier to see all that's here. Since a few folks have asked for printer-friendly versions of the blog, I thought I would post these efforts for downloading. But be forewarned, these documents are long --- apparently I have written a Blakely book in the last few months.

Download slp_blog_sept_1_to_sept_15.doc

Download slp_blog_aug_1_to_aug_31.doc

Download slp_blog_june_24_to_aug_1.doc

Download slp_blog_may_to_june_23.doc

September 16, 2004 in Blakely Commentary and News | Permalink | Comments (5) | TrackBack

Great work by another federal district court

Interesting and diverse opinions keep coming from the federal circuits courts (examples here; see also US v. Montgomery, 2004 WL 2050164 (9th Cir. Sept 15, 2004)), as well as from the state appellate courts (examples here; see also People v. Shaw, 2004 WL 2053260 (Cal. App. 3 Dist. Sept. 15, 2004)).

However, through a terrific decision yesterday in US v. Johns, 2004 WL 2053275 (M.D. Pa. Sept. 15, 2004), US District Judge Christopher Conner showed off how important district courts remain —and how much district judges can teach us — in this post-Blakely world.

Johns is a must read for many reasons, and it cannot be succinctly summarized. But a few highlights can perhaps give you a sense of the decision's potency. The opinion starts with lovely understatement, "Sentencing issues that were routine a mere three months ago now merit a full opinion," and articulates at the outset that "the court believes that Blakely and its predecessors compel one holding: The constitutional rights recognized in Blakely are both applicable to and consistent with the United States Sentencing Guidelines."

Thereafter, following a lengthy and thoughtful disquisition on various Blakely issues, the opinion concludes with this flourish:

Blakely is an evolution, not a revolution. It is supplementary, not contradictory. Far from sounding the death knell of the United States Sentencing Guidelines, Blakely supports full operation of those provisions. It affirms that defendants do not shed their constitutional rights to a jury trial and proof beyond a reasonable doubt at the start of sentencing proceedings. Honoring these rights requires only a conceptual bifurcation of sentencing procedure: A determination of the "statutory maximum" must precede and cabin a determination of the Guidelines sentence. Blakely is both applicable to and consistent with the United States Sentencing Guidelines.

And, if that was not enough, the decision also provides "a standing practice order governing future criminal proceedings" attached as an appendix to the opinion.

September 16, 2004 in Blakely in Sentencing Courts | Permalink | Comments (5) | TrackBack

Sentencing news of note

There are interesting sentencing stories across a range of topics this morning. On the death penalty front, Adam Liptak of the NY Times has this article on the new legal and policy debate over the humanity of the standard lethal injection chemicals.

Regarding the Angelos mandatory minimum case, previously recently discussed here and here, there is news coverage of note from various Utah media outlets here and here and here.

And, for your morning Blakely fix, here's an article from Maine about a Blakely-reduced federal sentence in an OxyContin case, and another article from Maine about a Blakely-reduced federal sentence in a child pornography case.

UPDATE: A few thoughtful readers sent along some additional noteworthy recent newspaper pieces. This editorial effectively discusses the politics and realities of Georgia state sentencing to argue that "Georgia needs to leaven its justice with a little wisdom and mercy." And there is a piece in today's New York Law Journal (only available on-line here with a subscription) which suggests that opposition to New York's notoriously draconian Rockefeller Drug Laws helped win a primary for District Attorney in Albany.

September 16, 2004 in Blakely Commentary and News, Death Penalty Reforms, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

September 15, 2004

Big Blakely rulings from the states

Federal courts have been relatively quiet on the Blakely front this week (perhaps because, as suggested here, federal judges are so busy sorting through piles of clerkship applications). But the state courts have been keeping Blakely busy; at least three consequential ruling from courts in California, Minnesota and Tennessee appeared on-line today:

From California, the court in People v. George, 2004 WL 2051167 (Cal. App. 4 Dist. Sept. 15, 2004), held that Blakely precluded the imposition of an upper term sentence, and rejected the government's claims that the defendant has waived the issue and that any Blakely error was harmless. Here's some key language:

[B]ecause Blakely was decided after George's sentencing, George cannot be said to have knowingly and intelligently waived his right to a jury trial....

Under California's determinate sentencing law, where a penal statute provides for three possible prison terms for a particular offense, the court is required to impose the middle term unless it finds, by a preponderance of the evidence, that the circumstances in aggravation outweigh the circumstances in mitigation. The Attorney General argues that the imposition of an upper term sentence under the California determinate sentencing scheme is not the same as the imposition of a penalty beyond the standard range and thus does not implicate Blakely. The attempted distinction, however, is one without a difference. Although an upper term is a "statutory maximum" penalty in the sense that it is the highest sentence a court can impose for a particular crime, it is not necessarily the "maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant," which is the relevant standard for purposes of applying Blakely....

Here, the trial court relied on five aggravating factors as the basis for its decision to impose the upper term, to wit, that (1) the crime was serious and involved threats of great bodily injury to the victims; (2) the crime involved planning, sophistication and professionalism; (3) the current offense was more serious than the offense underlying George's prior conviction, which was itself serious; (4) at the time George committed the current offenses, he was on felony probation; and (5) George's prior performance on probation was poor.... [W]e conclude that the trial court was constitutionally entitled to rely only on the fact that George was on probation at the time of the charged offense as a basis for imposing an upper term sentence. Because this fact arises out of the fact of a prior conviction and is so essentially analogous to the fact of a prior conviction, we conclude that constitutional considerations do not require that matter to be tried to a jury and found beyond a reasonable doubt.... Thus, in accordance with the analysis of Blakely, the trial court was not required to afford George the right to a jury trial before relying on his status as a probationer at the time of the current offense as an aggravating factor supporting the imposition of the upper term.

The Attorney General suggests that the propriety of this single factor as a basis for imposing an upper term sentence is sufficient to withstand George's constitutional challenge to the sentence.... [But] we cannot conclude that the elimination of four of the cited factors would not have made a difference in the court's sentencing decision here.... The matter is remanded for resentencing.

From Minnesota, the court in Minnesota v. Ingalls, 2004 WL 2050533 (Minn. App. Sept. 14, 2004), reserves the imposition of a "double-upward departure imposed by the district court." The court's ruling gets right to the point: "Like the sentencing departure in Blakely, the upward departure in this case is not based solely on facts reflected in a jury verdict or admitted by appellant; it is based on the district court's determination that aggravating factors were proved. Because the district court could not have considered whether basing appellant's sentence on these factors is permissible under Blakely, we remand for reconsideration of appellant's sentence in light of Blakely."

From Tennessee, the court in State v. Syler, 2004 WL 2039809 (Tenn. Crim. App. Sept. 13, 2004), explains that, though Blakely was "not raised by either party, we are constrained to address the Defendant's sentence in light of Blakely." And the impact is consequential:

The Blakely decision calls into question the validity of Tennessee's sentencing scheme, insofar as that scheme permits trial courts to increase a defendant's presumptive sentence based upon enhancement factors found by the trial judge.... The presumptive sentence for a standard offender convicted of a Class A felony is twenty years.... Here, the Defendant was sentenced to twenty-one years for each of his Class A felonies, one year above the presumptive sentence, based upon several enhancement and mitigating factors found by the trial court at the sentencing hearing....

The trial court enhanced the Defendant's sentences for the Class A felonies on the bases that the victim was "particularly vulnerable because of age or physical or mental disability," and the Defendant "abused a position of public or private trust." Tenn. Code Ann. § 40-35-114(5), (16). Neither of these enhancement factors is reflected in the jury's verdict, nor was either factor admitted by the Defendant. Pursuant to Blakely, the trial court's enhancement of the Defendant's sentences on these bases was therefore erroneous. See State v. Michael Wayne Poe, No. E2003-00417-CCA-R3-CD, 2004 WL 1607002, at *10 (Tenn.Crim.App., Knoxville, July 19, 2004) (holding that the rule in Blakely precludes application of enhancement factors (5) and (16) where they have not been submitted to the jury and have not been admitted by the defendant).

Pursuant to Blakely, the Defendant's sentences for his Class A felonies should not have been increased above the statutory presumptive sentence based upon statutory enhancement factors (5) and (16). Accordingly, we reduce the Defendant's sentences for his two Class A felonies from twenty-one years to twenty years.

September 15, 2004 in Blakely in the States | Permalink | Comments (0) | TrackBack

Numbers, please

The soon-to-be-released DPIC report about the administration of capital punishment and the number of innocent persons released from death row (background here) serves as another example of the potency of data and numbers. And, as I noted here, I believe views on key Blakely issues like severability and retroactivity may be greatly influenced by perceptions or suppositions about the number of cases possibly impacted by different sorts of rulings.

Though lots of sentencing numbers (both state and federal) might be important for examination and analysis, below I have indicated some data about which I am particularly curious in the run-up to Booker and Fanfan. I would be grateful if anyone with answers — or even ideas about how to find answers — would share what they know in the comments or in an e-mail to me.

1. Number of superceding federal indictments obtained since June 24, 2004. Note that this recent article is one of many I have seen suggesting that "Blakely-ized" indictments are common nationwide.

2. Number of federal sentences currently pending, i.e., "not final," (a) in toto, and (b) that have clear Blakely issues. Recall that Justice O'Connor reported in footnote 2 of her Blakely dissent that, on "March 31, 2004, there were 8,320 federal criminal appeals pending in which the defendant's sentence was at issue." But of course, this number represents just pending appeals, and the number of "not final" federal sentences must be larger. However, this number does not distinguish how many of cases have clear Blakely issues. That number might be much smaller.

3. Number of federal sentences "not final" as of June 27, 2000 when Apprendi decided (a) in toto, and (b) that have clear Blakely issues. Again recall that Justice O'Connor reported in footnote 2 of her Blakely dissent that between "June 27, 2000, when Apprendi was decided, and March 31, 2004, there have been 272,191 defendants sentenced in federal court." This number is only a rough (under)approximation of how many federal defendants might have claims if Blakely applies to the federal system and is made retroactive, but it is necessarily an overapproximation of how many past cases might have clear Blakely issues.

Of course, even if (when?) I get this sort of data, I will just want to repeat the data inquiry for each state sentencing system with Blakely issues. In the end, I cannot get over how thoughtful SCOTUS was to give us academics so many valuable research projects.

September 15, 2004 in Blakely Commentary and News | Permalink | Comments (0) | TrackBack

Reconsidering shame

Last month, as discussed here, the Ninth Circuit in US v. Gementera, 2004 WL 1770101 (9th Cir. Aug. 9, 2004), upheld a sentence which, as a condition of supervised release, required convicted mail thief Gementera "to spend a day standing outside a post office wearing a signboard stating, 'I stole mail. This is my punishment.'" And, as detailed here, attorney Dan Markel has been a thoughtful critic of the Ninth Circuit's endorsement of shaming punishments since Gementera was handed down.

Dan has now completed a "working draft" of an "Amici Curiae Brief of Law Professors Submitted on Behalf of Appellant Shawn Gementera's Petition for Rehearing with Suggestion for Rehearing En Banc." Upon Dan's request, I am happy to post his draft brief (available to download below) to help Dan "collect signatories from criminal law/constitutional law professors who might be interested in the position." Dan has indicated he will have an updated version of the draft "by Sunday or so," and he encourages people interested in signing on (or in sharing comments) to email him directly at dmarkel@khhte.com.

As indicated in comments here, my own views on shaming punishments are mixed and thus I am looking forward to giving this thoughtful brief a close read.
Download draft_gementera_amicus_brief.pdf

September 15, 2004 in Criminal Sentences Alternatives, Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (0) | TrackBack

Martha Stewart speaks (on Blakely)!!

Well, the headline above may be a bit misleading, but according to this NY Times/AP story, Martha Stewart has decided to surrender for prison as soon as possible in order to "put this nightmare behind me and get on with my life."

Blakely nuts like me of course recall that, as discussed here, Judge Cedarbaum had cited Blakely when granting Martha's application for a stay of sentence pending appeal. According to the NY Times/AP story, Martha's lawyer Walter Dellinger "said he still believed she had a chance to win a reversal of her conviction [but he] had asked a federal judge to withdraw the stay of her sentencing pending appeal."

I cannot help but speculate about what sort of Blakely-related advice Martha received. I would guess that, despite my musings here and here, Martha's lawyers sensibly concluded it was unlikely Martha would be able, because of Blakely, to do a lot better at any resentencing. Or, to be more precise, Martha's lawyers probably said that she likely could serve her 10 months and be free before the all the questions surrounding federal sentencing law would be resolved. Thus, the case stands as another example of a point Jason Hernandez made here last month: many defendants are as interested in certainty as leniency; like Martha, they just want to do their time and be done with it.

September 15, 2004 in Blakely Commentary and News, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Circuit contrasts: variations in appellate justice

As detailed in the three Senators' amicus brief filed in Booker and Fanfan (available here, commentary here), guideline reforms sought to "eliminate the intolerable disparities that had plagued the federal sentencing system." Yet today we have stunning disparities in the application of the federal guidelines in the wake of Blakely. Even putting aside all the noted variations from district to district and case to case, on the circuit level alone on just the most basic Blakely question we have a five-way circuit split:

1. Blakely has been deemed, at least for the time being, wholly inapplicable to the federal guidelines in the Second, Fifth, and Eleventh Circuits;
2. Blakely has been deemed, at least for the time being, inapplicable to the federal guidelines, but an order recommending the announcement of an alternative sentence is in place in the Fourth and Sixth Circuits;
3. Blakely has been deemed applicable to the federal guidelines, but severability questions have been left open, in the Seventh Circuit;
4. Blakely has been deemed applicable to the federal guidelines and the guidelines deemed severable in the Ninth Circuit; and
5. Blakely's impact on the federal guidelines is presently unresolved in the First, Third, Eighth, Tenth and DC Circuits.

And beyond these critical basics, there are and surely will continue to be variable rulings on "smaller" Blakely questions like plain error, waiver, restitution, indictment practices and so on and so on (see general background here and here and here)

Moreover, as all good lawyers know, circuit differences are reflected not only in doctrine, but also in attitude. Indeed, I sometimes perceive a certain tone in some Blakely rulings, and this tone often varies from circuit to circuit. Two cases handed down yesterday perhaps provide an example of what I mean.

In US v. Pree, 2004 WL 2039274 (7th Cir. Sept. 14, 2004), the Seveth Circuit seems to go to extraordinary lengths to preserve a Blakely claim for a defendant who did not even raise it:

As a final matter, we address an issue not raised by the parties — the constitutionality of the sentencing enhancement Ms. Pree received for obstruction of justice. Ms. Pree's case was briefed and argued prior to the Supreme Court's decision in Blakely [and this court's holding] in Booker that enhancements imposed by the court without a jury finding violate the Sixth Amendment.

Ms. Pree does not address to this court, nor can we find evidence in the record to indicate, that she addressed before the district court the constitutionality of her sentencing enhancement. In light of the sea change in federal sentencing law wrought by Blakely and Booker, we think it appropriate to take note of the possibility of an unconstitutional sentencing enhancement. Given the precedent in this circuit prior to Blakely, we think it would be unfair to characterize Ms. Pree as having waived a challenge to the validity of her sentencing enhancement.

The Supreme Court has granted certiorari in Booker and will consider, in the very near future, the application of Blakely to the United States Sentencing Guidelines and therefore the correctness of this court's decision in Booker. We therefore shall stay our mandate in this case until the Supreme Court has rendered its decision in Booker. Within fourteen days of the Supreme Court's decision in Booker, each party may submit a memorandum presenting its views on the application of that decision to this case.

[Footnote 17. It appears that Ms. Pree's enhanced sentence will be completed prior to the decision of the Supreme Court. Any matter with respect to bail should be addressed to the district court.]

But in Burrell v. US, 2004 WL 2039420 (2d Cir. Sept. 14, 2004), the Second Circuit seems to go to extraordinary lengths in a footnote to extinguish an arguable Blakely claim:

Despite the district court's failure to award a certificate of appealability on the Apprendi point, Burrell argues it in a pro se supplemental brief filed with this court. We may, of course, amend a COA to include an issue not certified by the district court ... [but we] decline to do that in this case because (1) Burrell's Apprendi claim is foreclosed by our [prior Apprendi] decisions ... which we have recently declined to reconsider despite the Supreme Court's decision in Blakely; (2) even if Burrell could establish an Apprendi error in his case, the law is clear that Apprendi cannot be applied retroactively on a collateral challenge to a conviction; and (3) an Apprendi error would, in any event, be harmless in this case because it would not result in the reversal of Burrell's conviction, only resentencing, since (a) he has completed serving the originally imposed term of incarceration, and (b) it is the fact of his conviction not the length of his sentence that now affects his deportation.

Of course, the defendant in Pree obviously has a much, much stronger case on the merits than the defendant in Burrell, and different circuits might have made similar rulings in each individual case. But I do think these cases help highlight the possibility that general attitudes about Blakely claims may impact future cases as much as the intricacies of certain doctrines.

September 15, 2004 in Blakely in Appellate Courts | Permalink | Comments (1) | TrackBack

Death is different

Adam Liptak has another potent article discussing data soon to be released by the Death Penalty Information Center documenting a steep decline in death sentences in the United States in recent years. Here are some key passages from the article:

The Death Penalty Information Center, which is to release the report tomorrow, attributes the decline largely to growing public awareness of death-row exonerations and concerns that innocent people might be sentenced to die.... In 2003, there were 143 death sentences issued, the fewest since 1977, the year after the Supreme Court reinstated the death penalty.

"This is the single most interesting fact about the death penalty in the United States in the last two or three decades," said James S. Liebman, a law professor at Columbia and an expert on capital punishment....

The report's description of the decline in death sentences is based largely on data from the Justice Department and is not disputed by supporters of the death penalty. But the report's thesis — that exonerations play a major role — as well as its data on the number of people exonerated are the subject of debate.

The rest of the NY Times article discusses disputes over the exact number of innocent people who have been released from death row and also examines other possible causes for the decline in death sentences.

I will post a link to the DPIC report when it is available. Obviously the report will provide quite significant information about the administration of capital punishment. But it also serves as a useful reminder of the different factors that can influence jury sentencing.

UPDATE: The DPIC has released this press release about its forthcoming report, and also to be found on the DPIC website is this executive summary of the report which is entitled "Innocence and the Crisis in the American Death Penalty." As indicated in these materials, the full report will be available on the DPIC website on September 20, 2004.

September 15, 2004 in Death Penalty Reforms, Who Sentences | Permalink | Comments (1) | TrackBack

An amicus brief on waiver

Yesterday I received a final copy of an amicus brief filed in support of the respondents in Booker and Fanfan. (I suspect that this will be the first of many such amicus briefs; I speculated with my class yesterday that there might be as many as a dozen amicus filings in support of the respondents.)

This first amicus was filed by the Office of the Federal Public Defender in the Northern District of Texas, and interestingly it does not directly address a specific issue before the Supreme Court in Booker and Fanfan. Rather, as the brief explains, it is addressed to "the issue of whether a simple admission of facts, other than the fact of a prior conviction, can function as a waiver of constitutional rights." The brief was needed, explains the author, because it "appears from the caselaw, commentary, and the known positions of the parties that this important issue will not be addressed."

The brief, which can be downloaded below, is an interesting read. Here is the conclusion, which sums up the brief's main points well:

Blakely, citing Apprendi, discussing Almendarez-Torres does not support the proposition that a defendant can waive constitutional rights by simply admitting facts, which are not facts related to a prior conviction, that increase the relevant statutory maximum sentence. Any such statement is contrary to this Court’s precedent. The defendant, however, can admit facts in conjunction with a valid waiver of enumerated rights that will allow the judge to increase the relevant statutory maximum sentence. As part of this procedure, the sentencing court must fully inform the defendant of the rights being waived and the results of such a waiver. Only then will a defendant knowingly and voluntarily have waived constitutional and statutory rights....

The bottom line is that the application of Blakely to the Federal Sentencing Guidelines, when combined with admitted facts and valid waivers, will result in defendants actually receiving the guideline range that they bargained for: this would be real "truth in sentencing."

Download bookerblakely_waiver_amicus.pdf

September 15, 2004 in Blakely in the Supreme Court, Booker and Fanfan Commentary, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

September 14, 2004

No decision (yet) in mandatory minimum case

According to the folks at Families Against Mandatory Minimums, US District Judge Paul Cassell (D. Utah) tonight announced that he would "take arguments under advisement" in the case of Weldon Angelos, the 25-year-old record producer who faces 63 years in prison for a first offense of marijuana dealing primarily because of federal mandatory minimum sentences (background here). More details about the case and Judge Cassell's (non)ruling can be found in the FAMM press release below.
Download angelos_decision_deferred.doc

September 14, 2004 in Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Calling all data junkies!!

The more I think about issues like severability and retroactivity, the more I realize a lot of my thinking (and perhaps also the thinking of courts and litigants) is influenced by perceptions or suppositions about the number of cases possibly impacted by different sorts of rulings. To its credit, the Minnesota Sentencing Guidelines Commission gave us some real (though perhaps shaded) numbers about how many cases Blakely would likely impact in that state (see Ron's post here), but I have not seen anything comparable from the federal sentencing commission or other state entities. And, of course, I have not seen any effort to run the Blakely "retroactivity" numbers in any single jurisdiction or across all jurisdictions.

Of course, the US Sentencing Commission has terrific general data on its website concerning various guideline related matters. For example, here is a chart of the number of federal offenders of various offense types in the federal system in recent years, here is a chart of guilty pleas and trial rates, and here is a chart of federal offenders receiving different sentencing options in each primary offense category, and here is a chart of the position within the guideline range for offenders in each primary offense category.

I am not quite sure if and how any of this data can or should directly or indirectly impact arguments about Blakely's applicability to the federal guidelines or issues of severability. But I am sure that I would like to here from any and all data junkies out there who have been looking at real numbers while I have been focused on matters of policy and doctrine.

September 14, 2004 in Blakely Commentary and News | Permalink | Comments (0) | TrackBack

Wouldn't most sentences be lower if the guidelines are non-severable?

As detailed in this recent post, I am worried about some potentially peculiar and problematic consequences of a ruling that the federal guidelines are (partially or totally) not severability. Moreover, though in this seemingly long-ago post I posited that the severability debate is a tussle between concerns about lawlessness and leniency, I am now thinking that, if the SG's non-severability argument prevails, we will have a federal sentencing world that is both lawless and lenient.

As noted before, the SG's advocacy of non-severability seems driven principally by a concern that some defendants "could receive a sentencing windfall," SG brief at 68, if the guidelines were deemed severable. But won't (many?) defendants be able to receive a bigger windfall if the guidelines are declared non-severable (especially if the guidelines become inapplicable in all cases)? I suspect that most federal judges agree with Justice Kennedy's assertion to the ABA last year that "[o]ur resources are misspent, our punishments too severe, our sentences too long ... [and thus the] Federal Sentencing Guidelines should be revised downward." If so, won't most federal judges go even lower without any guideline constraints than if constrained by the guidelines applied in a Blakely-compliant way?

Consider, for example, the Booker facts before the Supreme Court. With the guidelines severable and still partially binding, Booker must get at least 210 months. But with the guidelines non-severable and just advisory — though with the SRA's mandate in 18 USC 3553(a) that a judge "impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment — Booker could receive a sentence as low as 120 months.

Alternatively, consider Martha Stewart's case. First, if the guidelines are completely non-severable in all cases (as two district judges have held), she has a right to resentencing; at resentencing she would have a reasonable argument that the SRA's requirement of "a sentence sufficient, but not greater than necessary," would call for a sentence with no jail time. Second, even if the guidelines are deemed non-severable only in cases with Blakely factors, Martha's lawyers might claim now that her case involves a Blakely factor so she can argue for a lower sentence under the government's non-severability theory.

Finally, consider the interesting and potent arguments made in a recent brief that I received (and provide for downloading below) that established due process and ex post facto doctrines preclude a judge from "retroactively increasing the potential penalty from the applicable Guidelines range to the statutorily prescribed maximum." In other words, constitutional doctrines may preclude judges from imposing harsher sentences if freed from guideline constraints — i.e., judges only discretion in a "non-severed guidelines world" may be to be more lenient (which, of course, may be what they really want to do anyway).
Download blakelybrooks_severability_memorandum.pdf

After I get through all this headache causing analysis, I come to wonder whether defense attorneys might in the end argue for non-severability, too, in Booker and Fanfan.

September 14, 2004 in Booker and Fanfan Commentary, Scope of Imprisonment, Severability of FSG | Permalink | Comments (5) | TrackBack

Sorting through non-severability concerns

The Solicitor General's brief in Booker and Fanfan does a fine job establishing that neither Congress nor the US Sentencing Commission expected or intended the federal guidelines to incorporate the sort of jury fact-finding that Blakely now suggests is constitutionally required. However, by ducking nearly all the tough severability issues (as explained here), the SG's brief fails to confront or even acknowledge the many potential problems that its non-severability argument presents.

Indeed, the more I think through the issue, the more I am concerned that adoption of the SG's non-severability claims will create far more chaos and uncertainty (and also perhaps more lenient sentences) than a severability ruling. Though I may need a series of posts to explain my concerns, let me try here to start spotlighting some of these issues:

1. What happens in cases without Blakely factors? As noted before, the SG brief ducks the question of whether, if Blakely applies to the federal guidelines, the guidelines can and should still apply in federal sentencing cases that do not raise any "Blakely factors." If the Supreme Court does not speak to this issue, lower courts will be at sea — and likely will make contradictory rulings — about the applicability of the guidelines in "Blakely-free" cases. Moreover, if the guidelines are still to apply in cases without Blakely factors, might we start seeing defendants claiming that their cases involve Blakely factors in order to try to escape the guidelines' strictures (e.g., might Martha Stewart claim that her case really does involve a Blakely factor so she can argue now for a lower sentence under the government's non-severability theory)?

2. How can and should sentencing with advisory guidelines proceed? The SG says that, if and when the guidelines "fall as a whole," then the guidelines "would remain as advisory factors for the court to consider." SG Brief at 66-67. But, practically speaking, how would sentencing proceed in federal courts with the guidelines wholly and only advisory?

In such a guideline-advisory world, would probation officers still create presentence reports (PSR) with guideline calculations or should sentencing courts relieve probation officers of this responsibility? Or, perhaps more critically, could a court to aid its discretionary sentencing decision order a probation officer to investigate a broad range of issues — e.g., drug dependency, lack of guidance as a youth — that are not generally pertinent in guidelines sentencing?

And assuming PSRs still contained guideline calculations (which seems critical if the guidelines are to be advisory), would prosecutors and defense attorneys be able to contest, either factually or legally, aspects of the PSR's guideline determinations? Would and should a probation officer and a sentencing judge consider common downward departure arguments — e.g., extraordinary family circumstances, aberrant behavior — in the context of the established departure jurisprudence, or should judges just be completely free to consider these factors as they see fit?

3. What happens to appellate review? Even if the Supreme Court determines that appellate review continues despite the guidelines being non-severable, how will appellate review proceed in cases in which the guidelines are only advisory? The SRA's appellate review provision, 18 USC 3742, does provide for "plainly unreasonable" review when "there is no sentencing guideline." But what will that mean in a world with advisory guidelines? Would a defendant be able to raise claims about a PSR's guideline determinations if a non-guidelines sentence was based on "advisory" guideline calculations in the PSR? Can the defendant base appellate claims on the other provisions of the SRA that the government (at SG brief p. 67) claims are still operative —including the requirement of 18 USC 3553(a) that a judge "impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment specified in the SRA (emphasis added)?

Because the SG's brief does not even begin to grapple with these questions, I wonder if the government has completely thought through all the consequences of a (partial or total) ruling on non-severability. I am quite worried that an excessive concern that a few defendants "could receive a sentencing windfall," SG brief at 68, has led the SG to advocate a position on non-severability that might actually create many, many more problems than it solves. In addition, as I will explain in a subsequent post, I actually think there is a much bigger risk that more defendants "could receive a sentencing windfall" if the guidelines are declared non-severable than if they are declared severable.

September 14, 2004 in Severability of FSG | Permalink | Comments (0) | TrackBack

Limiting the impact of Blakely in California

Just as most of the federal circuit courts seem to be doing their best to limit the Blakely fallout in the federal system (at least until Booker and Fanfan are decided), the California intermediate appellate courts are working hard to keep Blakely from disrupting too many California sentences. The latest case in point is People v. Sample, 2004 WL 2027285 (Cal. App. 3 Dist. Sept. 13, 2004), in which the court asserts on every possible ground that the defendant's Blakely claim is unavailing:

Defendant did not raise an Apprendi objection in the trial court, and factors used in imposing the upper term and consecutive sentencing were uncontested at trial and supported by overwhelming evidence. Hence, defendant is barred from raising the claim of Apprendi/Blakely error.

In any event, the rule of Apprendi and Blakely does not apply to California's consecutive sentencing scheme, and imposition of the upper term here was harmless beyond a reasonable doubt.

Similarly, in two unpublished opinions last week, two different California intermediate appellate courts gave the "prior conviction" exception a broad reading and application to affirm sentences that are arguably Blakely problematic. See People v. Bushnell, 2004 WL 2011414 (Cal. App. 2 Dist. Sept. 10, 2004); People v. Som, 2004 WL 1966058 (Cal. App. 3 Dist. Sept. 07, 2004).

Among other realities, these decisions highlight the mess that Blakely has created for state sentencing systems. They also spotlight the question of whether state courts will be able to effectively clean up state Blakely messes on their own, or will need the Supreme Court to soon address issues like the "prior conviction" exception and the applicability of Blakely to consecutive sentencing in order to bring order and normalcy back to state sentencing.

September 14, 2004 in Blakely Commentary and News, Blakely in the States, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Covering all the bases

In an interesting twist on the alternative sentencing idea (previously detailed here and here), the Seventh Circuit in US v. Schaefer, 2004 U.S. App. LEXIS 19166 (7th Cir. Sept. 13, 2004), recently decided that "[a]lthough Blakely and Booker necessitate our remand of this case to the district court for resentencing, we will nonetheless address Schaefer's arguments under the Guidelines ... in the interest of judicial economy in the event that the Supreme Court may subsequently decide some other fate for the federal Guidelines than that indicated in Booker."

After some thoughtful but fairly standard pre-Blakely analysis, the Seventh Circuit holds that the case is remanded due to Booker, but "in the event that the Supreme Court decides that Blakely does not invalidate the federal sentencing Guidelines, we affirm" Schaefer's sentence. And at the very end of its ruling, the Seventh Circuit drops this interesting footnote:

Schaefer has also requested immediate release under bond from incarceration, since he has already served what would presumably be his sentence if the Guidelines are invalid. Based on the present state of the law in this circuit, this seems to be a meritorious request, but we leave this decision to the district court on remand. In this regard, the district court might wish to take note of Schaefer's earlier positions in this case with respect to unchallenged aspects of his sentence. See Booker, 375 F.3d at 510 (interpreting Blakely to allow sentences to be imposed based on "what the jury found or the defendant admitted or, as here, did not contest") (emphasis added).

September 14, 2004 in Blakely in Appellate Courts | Permalink | Comments (0) | TrackBack

September 13, 2004

Big doings tomorrow

Though it seems like every day is a big day since Blakely, tomorrow brings two events of special note. First, as discussed here with more background here, scheduled for tomorrow afternoon in Utah is the sentencing of Weldon Angelos, a 25-year-old record producer who faces 63 years in prison for a first offense of marijuana dealing primarily because of federal mandatory minimum sentences. I have received a notice that Families Against Mandatory Minimums is planning a media event immediately following the sentencing hearing, with all sorts of notable participants. Details can be found in the press release below.
Download advisoryangelos_final.pdf

Also tomorrow, on the other side of the country, the public policy groups Watching Justice and the Constitution Project are hosting in Washington DC "an interactive panel discussion" compellingly titled "Blakely, the Kennedy Commission, and Beyond: The Future of State and Federal Sentencing Policies." Basic details about the event can be accessed at this link, and a fuller account of the event and of the all-star cast of participants can be downloaded below.
Download WatchingJusticeBlakleyEvent.pdf

September 13, 2004 in Blakely Commentary and News, Federal Sentencing Guidelines, Scope of Imprisonment, Who Sentences | Permalink | Comments (0) | TrackBack

Surplusage split

As previously discussed here, last week in US v. Mutchler, 2004 U.S. Dist. LEXIS 18053 (S.D. Iowa, Sept. 09, 2004), District Judge Robert Pratt granted a defense motion to strike allegations of aggravating factors in a "Blakely-ized" superseding indictment. But around the same time, in US v. Baert, 2004 U.S. Dist. LEXIS 17911 (D. Maine Sept. 8, 2004), District Judge Brock Hornby (of Fanfan fame) refused to strike allegations pertinent to sentencing because his interpretation of Blakely requires the government to "include such allegations in order to obtain what it considers an appropriate sentence" under the guidelines.

In short, we have an understandable, but still significant, "surplusage split."

And, interestingly, I also recently discovered that US District Judge Robert W. Gettleman, in US v. Brown, 2004 U.S. Dist. LEXIS 17835 (N.D. Ill. Aug. 13, 2004), granted "defendant's motion to dismiss indictment or, alternatively, to strike surplusage from indictment in part" based on the government's addition of "sentencing allegations" in a superceding indictment. But, in the same order, Judge Gettleman granted, over the defendant's "vigorous" objection, the government's motion "to continue the trial date from August 16, 2004, to a date in the future after the court receives guidance from the US Supreme Court in US v. Booker and US v. Fanfan." Based on the surplusage skirmish, I will leave it to others to figure out who won the battle and who won the war in Brown.

September 13, 2004 in Blakely in Sentencing Courts | Permalink | Comments (0) | TrackBack

An amicus report from the ACTL

As I discussed here, I find it ironic that in Booker and Fanfan many questionable arguments are being made in an effort to "save" from Blakely perhaps the only guideline system that does not deserve saving. Additional proof that the federal sentencing system does not deserve saving landed in my mailbox this morning in the form of a report from the American College of Trial Lawyers, which is tellingly titled "United States Sentencing Guidelines 2004: An Experiment That Has Failed."

This press release from ACTL provides background on the substance of the report and the Task Force that wrote it . Though not in the form of an amicus brief, I think the report (available for downloaded below) — which was written by a group with members "who represent all branches of the legal profession involved in the administration of criminal justice" including "sitting and former federal judges, current and former prosecutors and defense counsel" — should be required reading for everyone thinking about Booker, Fanfan, and the future of federal sentencing.
Download actl_failed_ussg_report.pdf

September 13, 2004 in Blakely Commentary and News, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3) | TrackBack

Looking for Blakely-ized clerks?

As discussed before here, the clerkship hiring season has officially begun, and rumor has it that federal judges are starting to arrange and conduct interviews. (Here you can get a sense of applicants' feelings as they seek what I still consider the greatest job to be had out of law school).

As this hiring process kicks into warp speed, I wonder if judges, both federal and state, are looking for clerks who have been "Blakely-ized." Since Blakely is the biggest legal story of the summer — with analogies drawn by others to cases like Brown and Roe — I would expect any serious applicant to be familiar with the decision and its aftermath.

But might at least some federal and state judges be looking for a lot of Blakely knowledge in a clerk, since Blakely issues are sure to be occupying courts for years to come no matter what the decision in Booker and Fanfan? Needless to say, any and every Ohio State applicant who crossed my path in the last few months has been fully Blakely-ized (and we all know how painful that can be).

September 13, 2004 in Blakely Commentary and News | Permalink | Comments (2) | TrackBack

Blakely from the California to the Carolinas...

Coast to coast, everyone is grappling with the Blakely fallout. The latest news on the state of Blakely in California can be found in this article, while this quite thoughtful piece reviews the state of the post-Blakely world in North Carolina. Both articles highlight the dramatic and uncertain impact that Blakely is having on state sentencing systems.

Meanwhile, I was unable to turn off my Blakely brain this weekend, and thus you will find, on state law topics, weekend posts of note on additional media coverage, and on a fascinating Ohio case.

On the federal sentencing front, I have noteworthy posts on mandatory minimums, on alternative sentencing and on the guidelines' severability here and here.

September 13, 2004 in Blakely Commentary and News | Permalink | Comments (0) | TrackBack

September 12, 2004

The SG's artful dodging on severability

Though the Solicitor General's arguments about the federal guidelines' severability are much more in touch with reality than some of its arguments about Blakely's applicability to the federal guidelines, what stands out most in the SG's treatment of severability is the dodging of some of the toughest issues. I suppose I should be thankful that the SG did not avoid the severability question altogether, as has the US Sentencing Commission, but the Supreme Court surely would benefit from a fuller analysis of all of the tough and critical severability questions it faces in Booker and Fanfan.

First, as noted before here, the SG brief completely ducks the question of whether, if Blakely applies to the federal guidelines, the guidelines can and should still apply in federal sentencing cases that do not raise any "Blakely factors." Recall that at least two federal judges have held that, if the guidelines are wholly inapplicable in some cases, then they are wholly inapplicable in all federal cases. Meanwhile, as detailed here, at least one Commissioner has opined that only one in five federal cases have Blakely issues. Whatever the true number, "lower courts will be in desparate need of guidance" (SG Brief at 43) about how to handle "Blakely-free" cases if SCOTUS applies Blakely to the federal guidelines.

Second, though the SG highlights that severability is an issue of statutory construction and legislative intent, the brief does not dig into all the challenging implications of these realities. For example, as I suggested here, perhaps the rule of lenity has some applicability in this setting, but the SG does not mention the doctrine at all.

In addition, the SG does not address which Congress's intent matters in assessing severability. (I previously noted here the intrigue of this question given that the 1984 Congress passed the Sentencing Reform Act (SRA), but the 1987 Congress approved the initial federal guidelines, while the 2003 Congress directly amended the guidelines in the PROTECT Act, and Congresses (Congri?) from 1988 through 2004 continued to approve/authorize the current guidelines and amendments thereto). The "which Congress" question seems consequential since, as noted here, the Congress that passed the SRA was primarily focused on remedying lawlessness, while more recent Congresses have shown a particular concern about perceived leniency.

Finally, since the SG contends that the SRA is severable by arguing that the provisions of 18 U.S.C. 3553(a) would still govern federal sentencing even if Blakely is applicable to the federal guidelines, see SG Brief at 67, I suppose it is understandable that the SG does not address the continued validity of sentencing appeals or supervised release or the abolition of parole or other fundamental features of the SRA. Nevertheless, as noted here, the broadest claim of non-severability raises a host of critical, practical issues not even acknowledged by the SG.

September 12, 2004 in Booker and Fanfan Commentary, Severability of FSG | Permalink | Comments (0) | TrackBack

Head-counting in an alternative universe

Judge Wilkins majority's opinion for the Fourth Circuit in Hammoud (available here and commentary here) includes a brief explanation for the Circuit's recommendation that district judges "announce, at the time of sentencing, a sentence pursuant to 18 U.S.C.A. § 3553(a), treating the guidelines as advisory only." This explanation helps me understand a bit better why a majority of the Fourth Circuit believes that "announcing — not imposing — a non-guidelines sentence at the time of sentencing will serve judicial economy," even though the court recognizes that the "announcement of a non-guidelines sentence may require the district court to consider issues not generally pertinent in guidelines sentencing, thereby requiring the investment of additional time at the sentencing hearing."

But, like other aspects of the Hammoud decision, the alternative sentencing explanation leaves me with more questions than answers. First, in light of the Fourth Circuit's recommendation, shouldn't the disposition of the Hammoud case been a remand for the announcement of an alternative sentence? Wouldn't it be useful, to paraphrase the Fourth Circuit, for "the district court and the parties [to make] at least substantial progress toward the determination of a non-guidelines sentence [in Hammoud's case], at a time when the facts and circumstances [are still] clearly in mind"?

Second, Judge Widener's dissent to the "alternative sentence" portion of the Hammoud ruling asserts that "even if the recommended advisory sentencing is discretionary, about which I have some doubt, in my opinion, it is inadvisable." This statement and the majority's discussion raises, but does not answer, the question of whether district courts may lawfully refuse to follow the alternative sentencing recommendation. May Judge Goodwin continue to refuse to impose alternative sentences (as thoughtfully explained here), or must he now get in line? The Hammoud majority's oblique footnote addressing Judge Goodwin's serious concerns about alternative sentencing does not answer this question. And since Ron reported here that most district judges in the Fourth Circuit have not been announcing alternative sentences, this is a question that may be on the minds of many district judges in the Fourth Circuit.

Finally, I have a distinct empirical/practical question: Is anyone keeping track of how many and what sorts of alternative sentences have been announced in the Fourth Circuit and elsewhere after Blakely? I hope and expect the US Sentencing Commission is collecting this data, and the recent memo from the Judicial Conference Criminal Law Committee discussed here suggests that the federal Bureau of Prisons might also be tracking these issues. Recall also that DOJ through the Comey memo (available here) urged its prosecutors to seek alternative sentences and indicated it would be collecting lots of data during this chaotic period.

Whomever may be keeping track of alternative sentencing data, I sincerely hope that this data can be systematically tallied and made available to the public as soon as possible. I think I can fairly speak for the academic and research community when I say that many academics and researchers will have an interest in examining and analyzing alternative sentencing data.

September 12, 2004 in Blakely in Appellate Courts, Federal Sentencing Guidelines, Severability of FSG | Permalink | Comments (4) | TrackBack

The future of mandatory minimums?

Adam Liptak has this terrific article in today's NY Times about the upcoming sentencing of Weldon Angelos, a 25-year-old record producer, who faces 63 years in prison for a first offense of marijuana dealing primarily because of federal mandatory minimum sentences.

Sadly, the case may not be all that unusual on the facts, but it is making headlines because Utah US District Judge Paul Cassell raised questions about the constitutionality of mandatory minimum sentences in the Angelos case back in February, and he directed defense attorneys and federal prosecutors to file briefs on the issue. And, as previously detailed here, among the briefs filed on Angelos' behalf was an amicus effort by a group 29 former legal officials — including former US attorneys, federal judges, and a former US attorney general — arguing that his sentence would be unconstitutional on various ground (most specifically as a violation of the Eighth Amendment's prohibition of cruel and unusual punishments).

The Angelos case is fascinating on its own terms for many reasons, especially because Judge Cassell in his short tenure on the bench has already shown his capacity and courage to address sentencing issues in dynamic and dynamite ways. I hope Judge Cassell can and will issue a quick and powerful decision in Angelos that helps frame the future legal and policy debate over mandatory minimums (just as he framed the federal debate over Blakely through his brilliant Croxford opinion).

But as the NY Times article astutely notes, the Angelos case and the status of mandatory minimums in the federal system is even more important now both legally and politically in the wake of Blakely:

The Angelos case may provide a glimpse of the future.... The Supreme Court will decide whether to strike down the sentencing guidelines after it hears arguments in October, and some legislators are already signaling their preference for more mandatory minimums if the guidelines are deemed unconstitutional.

At a hearing in July on legislation that would increase drug sentences, Representative Howard Coble, Republican of North Carolina, said, "It seems clear that mandatory minimums may well take on added importance in assuring appropriate sentences for serious federal crimes as a result of the Supreme Court's actions."

Ronald H. Weich, a former counsel to the Senate Judiciary Committee who opposes mandatory minimums, said they had a political constituency. "There is a real danger," Mr. Weich said, "that we're heading back to mandatory minimums if guidelines are unconstitutional."

Sadly, I got the eery feeling when in DC last week that many folks inside the Beltway fear it is inevitable that the striking down of the federal guidelines in Booker and Fanfan would lead to congressional passage of additional mandatory minimums, even though all thoughtful observers recognize, in the words of Justice Kennedy, that "[i]n too many cases, mandatory minimum sentences are unwise and unjust." Indeed, I believe this fear best explains the curious briefs filed by the USSC and the former judges and the Senators seeking to defend a federal sentencing system that they know is flawed, perhaps deeply flawed, in many respects.

Though a fear of Congress' (over)reaction to the striking down of the federal guidelines is understandable and perhaps even justifiable, for now I am going to hold on to my (naive?) optimism that meaningful sentencing reform after Blakely is possible. I really want to believe that, if thoughtful judges like Kennedy and Cassell keep speaking the truth about our current federal sentencing system, our elected representatives will care enough about good government (and not just about campaign rhetoric) to really try to do better.

September 12, 2004 in Booker and Fanfan Commentary | Permalink | Comments (6) | TrackBack