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June 3, 2005

Judge Gertner on Apprendi, Ring, and Blakely in capital setting

I am back from a great but too-brief San Antonio trip, and I have lots of new insights from talking to federal defenders that I hope to share in future posts.  But today I am just trying to catch up (and also make time for my favorite local sporting event). 

The most interesting development I missed yesterday is a new opinion from Mass US District Judge Nancy Gertner in US v. Green, the capital case which has already prompted some notable rulings from her court and the First Circuit.  This latest opinion in Green concerns the government's effort to "seek to justify [the defendant's] death sentences on the basis of a number of aggravating factors  [that include] allegations of prior crimes that were not charged in the instant indictment and, indeed, have never been adjudicated in any setting."  Not so fast, says Judge Gertner (in an opinion available for download below):

Together, Apprendi, Ring, and Blakely abandoned the Court's previous focus on the procedural protections required when a defendant is exposed to punishment above the statutory maximum.  They emphasized the protections that must be accorded more generally to facts, including those factors traditionally characterized as sentencing factors, that are essential to punishment because they increase a defendant’s punishment even within a statutory sentencing range. Plainly, prior unadjudicated crimes that the government offers to justify the imposition of the ultimate punishment fit within this category of essential factors.

Although defendants urge the Court to treat all nonstatutory aggravating factors alike and require that everything be screened, my ruling is a narrow one, limited to prior unadjudicated crimes.  The other non-statutory factors here (lack of remorse and victim impact), like certain of the listed statutory aggravators, are factors tied to the charged offense.  They do not raise the same constitutional concerns as prior unadjudicated accusations of crime apparently unrelated to the offense and uniquely prejudicial.

Download gertner_green_memo.pdf

June 3, 2005 at 09:42 AM | Permalink


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