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August 26, 2005

Is SCOTUS interested in the consecutive sentencing Blakely issue?

Lower courts have all been in agreement that Blakely does not formally apply to a judicial decisions to impose consecutive sentences, even though a functional understanding of Blakely suggests its applicability when a sentencing scheme requires the finding of a predicate fact before a consecutive sentence can replace a presumptive concurrent sentence.  Interestingly, thanks to the reemergence over at INCourts of Michael Ausbrook (whose coverage of state Blakely issues has been missed), I see that the Supreme Court might be interested in the consecutive sentencing Blakely issue.

As Michael explains in this post, after Indiana defendant Smylie filed a cert. petition on the question of Blakely's applicability to consecutive sentences, the Supreme Court ordered Indiana to file a response even though the state has waived its right to respond.  Though I think other Blakely issues are more pressing and one should not read too much into a briefing request, I think Michael is right to comment that "somebody in Washington seems interested in Smylie, Blakely, and consecutive sentencing."

August 26, 2005 at 12:15 AM | Permalink


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For the Supreme Court to get into Indiana's (now former) consecutive sentencing regime, it would have to get into a very intricate state law argument. The (now former) sentencing statutes did not require an aggravating circumstance for the imposition of consecutive sentences. In 1982, I think it was, the Indiana Supreme Court created the requirement judicially.

That should be no big deal because, as more cases than I can count say, the commission of multiple crimes is always an aggravating circumstance. The big deal comes in the sentencing statutes, though, which do not list the commission of multiple crimes as an aggravating circumstance. So Indiana consecutive sentencing can onlyu offend Blakely if the Supreme Court is going to say that aggravating circumstances unspecified by statute may never be used to enhance a sentence. This is the Blakely & Common Law Crimes theme.

But the Supreme Court would also have to say additionally that Blakely applies to multiple sentences generally. Presumably the burgular who know he's risking 10 to 40 years for burgulary would probably know that he's risking an additional 20 to 50 for the arson on the way out the door.

If lack of notice is the fundamental constitutional offense committed by determinate sentencing schemes, whatever the burden of proof, then consecutive sentencing should not be Blakely-problematic, Blakely-speaking.

Posted by: Michael Ausbrook | Aug 26, 2005 1:52:39 AM

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