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January 11, 2005

Another SCOTUS case to deal with (collateral) Blakely concerns?

A crackerjack reader has brought to my attention the fact that, in the Supreme Court's grant of cert. last week in Halbert v. Michigan, 03-10198 (available here), the second question presented could be of significance in the post-Blakely world.  Here is the question in full form:

Is Petitioner entitled to resentencing, where counsel failed to render effective assistance by not objecting to improper scoring under Michigan's sentencing guidelines which resulted in Petitioner receiving a considerably longer sentence?

Though, obviously, this question does not directly confront Blakely issues, any further elaboration on the meaning and application of ineffective assistance in the context of (noncapital) sentencing representation could be of great import in the wake of Blakely.  The Supreme Court's discussion of these matters in Glover v United States, 531 US 198 (2001), set out only the most basic of considerations.

(And yet, as suggested by Jonathan Soglin at Criminal Appeal in this post, it is not clear that the ineffectiveness question in Halbert v. Michigan is of real concern to the High Court.  As detailed by SCOTUSblog in this post, the Court clearly took Halbert to address "the constitutionality of a Michigan procedure that denies a free lawyer to aid an individual who has pleaded guilty but who wants to seek a discretionary appeal in a higher court."   The Court sought to confront that issue earlier this Term in Kowalski v. Judicial Circuit Court (03-407), but a standing problem got in its way.)

January 11, 2005 at 04:24 PM | Permalink


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Now that attention is being focused on the guidelines and statutory maximums, how is it that parole or probation can be given in addition to a sentence that is the maximum statutory time allowed? I believe this is against several State laws, how about the federal? Isn't probation after a prison term an additional punishment / confinement that would count in maximum statutory limits? Will this be a next challenge along with ineffective assistance of counsel for not preserving 6th amendment issues?

Posted by: Anne | Jan 11, 2005 11:57:36 PM

In reference to "Posted by: Anne | January 11, 2005 11:57 PM", the issue of probation after a prison term is plainly one to be answered by reference to the Double Jeopardy Clause of the Fifth Amendment. The discussion must start with a definition of probation which contrasts with parole. Probation is, by definition, a form of custodial punishment which occurs outside of a prison. Probation never preceeds incarcaration unless the person in custody commits a subsequent violation of the probation contract. This is done in two basic ways: (1) by violations which are contactual but not criminal, and (2) by commissions of new crimes which are never contractional violations. Probation never follows incarceration.

Parole is often confused with probation. Parole always follows incarceration. The time terms of the parole contract are implicit parts of the sentence. A sentence which includes incarceration may also include some parole time, but the sum of the times must never exceed the maximum for the original sentence. When release from prison, not custody, occurs prior to the serving of the maximim term, the balance of the time on the sentence is the parole time term.

A release from incarceration before the minimum sentence is served is an exoneration. Neither probation nor parole are permitted before the minimum term of inceaceration has been served. Otherwise, the second custody is Double Jeopardy barred.

Probation and incarceration never coexist in a valid sentence. If both are assigned at sentencing for a single offense, the sentence is automatically null and void as a Double Jeopardy violation because the incarceration and the probation are distinct punishments. When this nullity is committed by a State, the State must appeal from the non-jurisdictional sentencing terms, and the sentence must be altered to eliminate the Constitutional violation. A defendant is never required to appeal to a State process for a Double Jeopardy violation. Double Jeopardy bars "comity concerns" since there is no right that a State has to violate the Fifth Amendment.

The recent cases concerning illegal sentencing implicitly state that the Sixth Amendment is violated by illegal sentencings which deprive the jury of the factual decisions. However, a Double Jeopardy violation deprives the government of any right to a proceeding, including an appeal. See Smith vs. Massachuetts which was decided in February.

The conclusion is that the sum of parole terms and incarceration must not violate the Sixth Amendment. But any combination of incarceration and probation at the time of sentencing is barred by the Fifth Amendment.

J. Todd Chapman, Cornell Engineering graduste and victim of racial profiling

Posted by: J. Todd Chapman | Jun 26, 2005 5:42:54 PM

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