The Blakely earthquake hits Vermont

Yesterday, while the federal circuit courts were celebrating a Booker Festivus, the Vermont Supreme Court had its own version of a Blakely Festivus.  As detailed in this news report, the "Vermont Supreme Court on Friday changed a quadruple murderer's punishment and deemed a nearly 20-year-old Vermont sentencing law unconstitutional." 

The unanimous ruling came in State v. Provost, No. 2004-160 (Vt. Dec. 23, 2005) (available here).  Here are some highlights from the provocative decision:

Vermont's homicide sentencing scheme is unconstitutional. The maximum sentence the court may impose under § 2303(a) without finding any facts in addition to the jury's verdict is life imprisonment with a minimum term of thirty-five years. Increasing that sentence to life without parole on the basis of any facts, other than a prior conviction, that the jury has not found beyond a reasonable doubt, violates the Sixth Amendment.... We hold that 13 V.S.A. § 2303(a) violates the rule in Apprendi and Blakely because it requires the sentencing court to weigh specific aggravating and mitigating factors not found by a jury beyond a reasonable doubt before imposing a sentence of life without parole....

We decline to follow the example of those courts that have created their own sentencing procedures to replace legislative schemes held unconstitutional in the wake of Apprendi and Blakely.... It is not at all clear whether the Legislature would prefer an indeterminate sentencing scheme placing greater discretion in trial judges, or a scheme requiring juries to conduct whatever additional fact-finding is needed.... Until the Legislature designs a constitutionally permissible means by which the factors can be weighed, there can be no basis for adjusting defendant's sentence above the presumptive term.