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October 17, 2005

More on a big SCOTUS sentencing day

I will have a lot more to say in subsequent posts about the Supreme Court's fascinating and important decision to grant cert today in Washington v. Recuenco, No. 05-83, to consider whether Blakely error can be harmless.  But first I wanted to wrap up the news from a big SCOTUS sentencing day.

As first reported in this post, today we received the second opinion from the Roberts Court.  Schriro v. Smith involved, like the first opinion from the Roberts' court, a habeas case with the High Court stepping in to remedy what it considered to be over-reaching by a circuit court.  At issue in Smith is the process for adjudicating claims by a capital defendant that he is mentally retarded and thus exempt from execution after Atkins.  This issue has significantly divided lower courts (see, e.g., posts here and here and here on this topic), and the brief unsigned ruling in Smith will not resolve any of these divisions.  This issue will surely return to the High Court for an adjudication on the merits eventually.

In addition, today's order list is the first major set of orders without any Booker GVR's.  This notable reality suggests that, a full nine months after the Booker ruling, the pre-Booker appellate pipeline has significantly (though probably not entirely) been cleared out.  This order list also has more than 100 cert. denieds, some of which I would guess involve Booker claims.

Finally, though not technically a sentencing case, it is telling and interesting that, as reported here by Lyle Denniston, the first abortion case addressed by the Roberts Court resulted from a Missouri inmate's efforts to obtain an abortion over the objection of state officials. This news certainly reinforces my observations here earlier this year about the frequent intersection at SCOTUS of criminal justice, constitutional law, federalism and hot-button issues.

October 17, 2005 at 12:39 PM | Permalink


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» Supremes to Re-Tackle Sentencing from ACSBlog: The Blog of the American Constitution Society
Prof. Doug Berman at the Sentencing Law and Policy Blog is intrigued that the Supreme Court has granted cert in Washington v. Recuenco, a case raises the question whether Blakely sentencing error can be considered harmless. In Recuenco, the jury... [Read More]

Tracked on Oct 17, 2005 3:29:34 PM


Maybe you could clear up a confusion I have. If Blakely error can never be harmless, what implications would such a holding have on Blakely (or Booker) plain-error review?

First, if the Court in Washington v. Recuenco holds that Blakely-error can never be harmless error, then such an error would have to be deemed structural, and always require remand. See Sullivan v. Louisiana, 508 U.S. 275, 281-82 (1993) (contrasting harmless and structural error). Second, if a Blakely error is structural and never harmless, then the error had to “affect a party's substantive rights or the case's outcome.” Black’s Law Dictionary (8th ed.).

Therefore, wouldn't a Blakely-error always satisfy the plain error standard? The standard to reverse for plain error is that the defendant must prove that: (1) there was "error"; (2) the error was plain; and (3) the error affected "substantial rights." United States v. Olano, 507 U.S. 725 (1993). As such, even though the Court has rejected a Blakely/Booker plain-error review case, does Recuenco have implications for such cases? Maybe I am missing something, but using this logic, if the Court rules in favor of the defendant in Recuenco, then wouldn’t it be saying that the defendant’s burden on plain-error review will always be met?

Also, wouldn’t a holding that Blakely harmless error review is never appropriate be seemingly in contrast with the Booker remedial opinion’s statement that reviewing courts review Booker error by “application of the harmless-error doctrine” or asking “whether it fails the "plain-error" test”? Booker, 125 S.Ct. 738, 745.

Posted by: DEJ | Oct 17, 2005 3:29:40 PM

The Supreme Court could hold that "structural error" always requires reversal when a timely objection has been made, but that when there has not been a timely objection the ordinary "plain error" rule applies, including its discretionary component, as was applied in US v Cotton. I'm not saying they will hold this, just that they could.

Posted by: Peter G | Oct 17, 2005 10:01:52 PM

Doug, as I mentioned at the NC Blakely seminar, the notion that harmless error analysis applies to Blakely issues reminds me of an MC Escher print, since it means that a court must determine whether the absence of a jury affected the jury's verdict!

Posted by: Bruce Cunningham | Oct 17, 2005 10:40:29 PM

Bruce and Peter, both of your points are well reflected in Scalia's Neder dissent, for which he had two other votes (Souter and Ginsburg), as well as the sympathetic ear of Stevens. If Thomas has re-thought this issue, or if Roberts might truly be in Scalia's mold, we could get an amazing ruling.

Posted by: Doug B. | Oct 18, 2005 12:08:50 AM

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