« June 26, 2005 - July 2, 2005 | Main | July 10, 2005 - July 16, 2005 »

July 9, 2005

Notable ruling on constitutionality of lethal injection

As detailed in this AP article, a "state judge yesterday upheld the use of lethal injection in Kentucky, saying it is not cruel and unusual punishment."  This ruling is noteworthy in part because, as detailed in this post, the Kentucky court had conducted a full and balanced evidentiary hearing on this issue before ruling. 

As noted in this recent article, the Tennessee Supreme Court heard arguments last month in a case challenging the use of a particular drug in the lethal injection process, and this Kentucky ruling is likely to work its way up the appellate process.  The constitutionality of lethal injection protocols is an issue that will likely keep lower courts busy until the US Supreme Court takes it up.  In the meantime, the prior posts below provide more background on the issue:

UPDATE: Thanks to Karl Keys of Capital Defense Weekly, I can now provide this link to the lethal injection ruling in Baze v. Rees, No. 04-CI-01094 (Ky. Cir. Ct. July 8, 2005).  As Karl notes in the comments, the decision is more nuanced than press accounts indicate.

July 9, 2005 in Death Penalty Reforms, Who Sentences | Permalink | Comments (3) | TrackBack

The evolution of white-collar sentencing

Ebbers1 On-line at CNN/Money you can find this interesting article, entitled "Ebbers: Wrong place, wrong time," which spotlights the evolution of federal sentencing outcomes in high-profile white-collar cases. As the article effectively explains: "Ebbers' day of reckoning in court follows nearly two decades of increased focus on white-collar crimes and the punishments doled out by judges."

The article effectively notes that both the S&L crisis of the 1980s and then the Enron debacle more recently have altered prosecutorial priorities and public perceptions.  And among other interesting features of this article are a pair of charts comparing the sentences of "famous" corporate fraud defendants of the past (e.g., Ivan Boesky, Charles Keating. Mike Milken) and of today (e.g., Andrew Fastow, the Rigases, Jamie Olis). Ebbers2_1

These charts (which can be more easily read if you click on them) have placed a question mark next to Bernie Ebbers.  It will be interesting to see the sentencing outcome and reactions to that outcome when Ebbers get sentenced by US District Court Judge Barbara Jones later this month.  In the meantime, you can catch up on the arguments in Ebbers' sentencing proceeding and consider post-Booker white-collar sentencing more broadly through prior posts set out below:

UPDATE: Following up this post, Dr. Paul Leighton sent me a link to his webpage where he has a series of commentaries entitled "A Tale of Two Criminals: We're Tougher on Corporate Criminals, But They Still Don't Get What They Deserve."   These commentaries, while noting we are getting tougher on corporate crime, explore whether the sentences consistent with sentences for non-violent street crimes and whether they make sense in light of the social harm done.

ANOTHER UPDATE: Ellen Podgor at the White Collar Crime Blog has some comments on the upcoming Ebbers' sentencing here.

July 9, 2005 in Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0) | TrackBack

July 8, 2005

Arizona Supreme Court clears its Blakely docket

I just got word from a very helpful reader that the Arizona Supreme Court decided a slew of sentencing cases today.  All of the opinions can be accessed here, and I provide below the helpful summaries that were sent my way:

July 8, 2005 in Blakely in the States | Permalink | Comments (0) | TrackBack

First Circuit says Crawford does not apply at sentencing

Thanks to this post at Appellate Law & Practice, I see that the First Circuit in US v. Luciano, No. 04-1024 (1st Cir. July 8, 2005) (available here), has held that "[n]othing in Crawford requires us to alter our previous conclusion that there is no Sixth Amendment Confrontation Clause right at sentencing."  The First Circuit in Luciano, following the lead of the Second Circuit in Martinez (discussed here), also holds that "nothing in Blakely or Booker necessitates a change in the majority view that there is no Sixth Amendment right to confront witnesses during the sentencing phase."

July 8, 2005 in Booker in the Circuits, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Ninth Circuit says Blakely not retroactive

The Ninth Circuit, which has a reputation of being the most defendant-friendly federal circuit, today ruled in Schardt v. Payne, No. 02-36164 (9th Cir. July 8, 2005) (available here), that Blakely is not to be applied retroactively.  Especially since the Ninth was the circuit which had declared Ring retroactive (a ruling subsequently reversed by the Supreme Court), this decision has to be seen as a major blow to all those hoping for retroactive Blakely relief.  Here is the decision's opening paragraph:

We must decide in this matter the novel question whether a Washington state prisoner may challenge the validity of his sentence retroactively on the ground that the trial court based its sentencing decision on facts that were not found to be true by a jury in violation of the constitutional principle subsequently announced by the United States Supreme Court in Blakely v. Washington, 124 S.Ct. 2531 (2004). We conclude that Blakely does not apply retroactively to convictions that became final prior to its publication.  We also hold that the petitioner has failed to demonstrate that he was ineffectively represented by his trial counsel.

July 8, 2005 in Apprendi / Blakely Retroactivity | Permalink | Comments (2) | TrackBack

July 7, 2005

CJ Rehnquist out, too? Whither (or wither) Harris, Almendarez-Torres (and Booker)?

You can go to just about any law blog tonight — TalkLeft, SCONo, Volokh, UTR — and read up on rumors that Chief Justice William Rehnquist will announce his retirement on Friday.  Of course, if the rumors prove true, the press and the blogsphere will take SCOTUS-mania to an even higher height (and there will surely be lots of "life imitates art" discussion of a certain West Wing episode).

Playing my little role in all the buzz and punditry, let me reiterate points I have made previously about what a new Justice could mean for sentencing jurisprudence.  The Chief, like Justice O'Connor, served as a key fifth vote in the 5-4 decisions that produced the Almendarez-Torres "prior conviction exception" and the Harris "mandatory minimum" exception to the Apprendi-Blakely rule.  If (when?) President Bush nominates replacement Justices in the "Scalia-Thomas" mold, the fate of Almendarez-Torres and Harris becomes even more uncertain.

And on a day when the 7th Circuit has expounded on post-Booker sentencing and appellate review for reasonableness (basics here), it also seems useful to recall that both Justice O'Connor and Chief Justice Rehnquist were key votes enabling Justice Breyer to craft the advisory guideline remedy in Booker.  Consequently, it seems likely that the new Justice(s) could play a pivotal role in further development of what that Booker remedy really means when the High Court takes up follow-up federal sentencing cases in the terms ahead.

July 7, 2005 in Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

Big Booker twosome from the 7th Circuit

The Seventh Circuit today, in two important opinions that I cannot yet find on its website, expounded on post-Booker sentencing and appellate review for reasonableness. Fortunately, one of my favorite helpful readers sent me pdf copies of the opinions and I have made them available for download here.

In US v. Mykytiuk, No. 04-1196 (7th Cir. July 7, 2005), the 7th Circuit asserts, inter alia, that "any sentence that is properly calculated under the Guidelines is entitled to a rebuttable presumption of reasonableness."

Download mykytiuk_041196.pdf

In US v. Dean, No. 04-3172 (7th Cir. July 7, 2005), the 7th Circuit explains, inter alia, that "the sentencing judge can discuss the application of the statutory factors to the defendant not in checklist fashion but instead in the form of an adequate statement of the judge's reasons, consistent with section 3553(a), for thinking the sentence that he has selected is indeed appropriate for the particular defendant."  The Dean court also says that "the farther the judge's sentence departs from the guidelines sentence (in either direction—that of greater severity, or that of greater lenity), the more compelling the justification based on factors in section 3553(a) that the judge must offer in order to enable the court of appeals to assess the reasonableness of the sentence imposed."

Download dean_043172.pdf

Though I have been having lots of problems with technology today, I hope late tonight to be able to comments on both of these notable (and suspect?) rulings.

July 7, 2005 in Booker in the Circuits | Permalink | Comments (2) | TrackBack

NACDL releases report on "Gonzales Cases"

This afternoon, the National Association of Criminal Defense Lawyers has issued this press release in conjunction with its completion of a report, available here, entitled "Truth in Sentencing? The Gonzales Cases."  The report was stimulated by AG Alberto Gonzales speech last month in which, in the course of advocating a legislative Booker fix in the form of "the construction of a minimum guideline system," Gonzales described a few post-Booker cases and suggested these cases revealed why a Booker fix was needed. (The speech's basics are here, and my prior commentary on the speech can be accessed here and here and here.)

Here are passages from the introduction and the conclusion of the NACDL's "Truth in Sentencing?" report:

Criminal defense attorneys from the National Association of Criminal Defense Lawyers and the Federal Public and Community Defenders represent thousands of defendants every year in federal sentencing proceedings. Lawyers from these interested groups cooperated in closely examining the cases relied on by the Attorney General. Their analysis revealed that in each case the Attorney General's description was incomplete in important respects and failed fairly to describe the judges' reasons for imposing the sentence....

None of these cases reflects a failure of the judiciary or of the sentencing system: Each sentence was sufficient but not greater than necessary to achieve just punishment, deterrence, protection of the public, and needed education or treatment, taking into account the nature of the offense, the history and characteristics of the defendant, and the need to avoid unwarranted disparity as well as unwarranted uniformity.

July 7, 2005 in Booker in district courts, Legislative Reactions to Booker and Blakely, Who Sentences | Permalink | Comments (1) | TrackBack

Trying to keep up with the Eighth

I have long given up on keeping up with all the sentencing action in Eighth Circuit: in the less than sixth months since Booker was handed down, the circuit has already released over 235 opinions that appear on-line and at least mention Blakely or Booker.  (Marking a dramatic contrast, and reinforcing my observations last month about the divergent pace of Booker appeals in different circuits, the DC Circuit has only 7 such opinions appearing on-line.)  But a few published dispositions from today's copious bunch on this official opinion page caught my eye, and my friends "cut" and "paste" allow me to quickly set out the Eighth Circuit's official summaries:

US v. Bruce, No. 04-3589 (8th Cir. June 7, 2005) (available here): [PUBLISHED] [Wollman, Author, with Bright and Bye, Circuit Judges] Criminal case - Sentencing Guidelines.  District court erred in imposing sentence without consulting the guidelines and taking them into account in fashioning defendant's sentence; alternative sentence, which was almost double the sentence imposed, showed the error was not harmless, and the case must be remanded for resentencing.

Never Misses A Shot v. US, No. 05-1233 (8th Cir. June 7, 2005) (available here): [PUBLISHED] [Per Curiam - Melloy, McMillian and Gruender, Circuit Judges] Prisoner case - habeas.  The "new rule" announced in Booker does not apply to criminal convictions that became final before the rule was announced, and thus does not benefit movants in collateral proceedings, such as Section 2255 habeas actions.

July 7, 2005 | Permalink | Comments (1) | TrackBack

July 6, 2005

Lil' Kim gets more than a lil' prison time

As reported in this AP story, SDNY District Judge Gerard Lynch today sentenced Grammy-winning rapper Lil' Kim "to a year and a day in prison and fined [her] $50,000 for lying to a federal grand jury to protect friends involved in a 2001 shootout outside a Manhattan radio station."  The AP report and this Reuters account of the sentencing suggest that prosecutors sought a guideline sentence of at least 33 months, so Judge Lynch apparently granted a departure or a Booker variance to give Lil' Kim only a year-and-a-day.  (As all good federal attorneys should know, a federal sentence of a year-and-a-day is actually better than a sentence of just one year, because it makes the defendant eligible to earn good-time credit to reduce the actual time served in prison to around 10 months.)

More on the case, and on the rapper, can be found at Lil' Kim's fan website.  Notably, the AP report states that Judge Lynch "said he had considered the public perception of sending a young black entertainer to prison far longer than Martha Stewart, who spent five months in prison and remains under house arrest."  I find this especially interesting because, as detailed in this prior post, instructions posted on Lil' Kim's fan website before the sentencing asked her fans, when writing to Judge Lynch, "to refrain from drawing comparisons to Martha Stewart."

UPDATE: Ellen Podgor at the White Collar Crime Prof Blog shares thoughtful observations about the Lil' Kim sentencing here.

July 6, 2005 in Booker in district courts, Race, Class, and Gender | Permalink | Comments (8) | TrackBack

Litigating in a post-Booker world

Thanks to the tireless efforts of Alan Ellis, I now have permission to post a copy of an article by Ellis, Karen Landau, and James Feldman which appears in the Spring Issue of ABA Criminal Justice Magazine.  Entitled "Litigating in a post-Booker World" and available for download below, the piece offers, in the words of the ABA's website, "a practical, point-by-point analysis of the impact of the Supreme Court's recent Booker decision on important defense elements, including plea agreements and negotiations, the imposition of longer sentences, pending appeals, and retroactivity."  And the article's opening paragraph explains that the piece "explains [Booker], its probable effect on federal sentencing practice, and suggests potential areas for litigation in a post-Booker sentencing environment."  Enjoy.

Download ellis_litigating.pdf

July 6, 2005 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Considering O'Connor's capital sentencing legacy

As discussed here and here, I think the biggest sentencing story in the wake of Justice O'Connor's retirement concerns the fate and future of the Almendarez-Torres "prior conviction exception" and the Harris "mandatory minimum" exception to the Apprendi-Blakely rule.  But, given the Supreme Court's capital sentencing fetish (lamented here and  here and here), I suppose it is not surprising that others are discussing Justice O'Connor's role in death penalty cases.  Unable to resist a trend, I have a few thoughts to share on the subject.

Actually, this post over at the Supreme Court Nomination Blog purports to be about "Justice O'Connor's positions on several key criminal law issues."  However, the post only covers the death penalty, habeas corpus and ineffective assistance of counsel, and these later two areas of law usually come before the High Court in capital cases.  That SCONo post does effectively highlight O'Connor's "case-by-case approach" in all these areas, although I would add to the discussion a point emphasized in this O'Connor item from the Death Penalty Information Center:  O'Connor's "evolving skepticism about capital punishment" during her tenure on the Court seemed to shift her from a fairly consistent vote to uphold death sentences to an uncertain vote who became hard to predict in capital cases. 

Of course, the evolution of Justice O'Connor's views was not nearly as dramatic as Justice Blackmun's transformation on capital punishment.  (Recall that Justice Blackmun went from being a dissenter in Furman to the Court's only abolitionist by the time he retired.)  Nevertheless, I have an inkling that Justice O'Connor, who in a 2001 speech publically expressed her concerns about innocent persons sentenced to death, was a key player in the Supreme Court's recent trend of giving capital cases heightened scrutiny.  And, as I discussed here last week, I believe the Court's heightened scrutiny in capital cases has played a consequential role in recent declines in the use of the death penalty in the United States.

July 6, 2005 in Death Penalty Reforms, Who Sentences | Permalink | Comments (1) | TrackBack

Second Circuit on scope of prior conviction exception

Thanks to Yuanchung Lee and this post over at the Second Circuit Blog, I see that the Second Circuit yesterday issued this amended opinion in US v. Weisser, No. 01-1588 (2d Cir. June 20, 2005), amended (July 5, 2005), which clarifies and expands upon its earlier discussion of the limits of the Almendarez-Torres prior conviction exception.  Yaanchung Lee's post covers Weisser in full multi-color detail, explaining that the amended opinion "now explicitly states that certain facts relating to criminal history are indeed too far removed from 'the conclusive significance of a prior judicial record to fall within that exception.'" 

The key discussion of the prior conviction exception appears in footnote 10 on page 27 of the slip opinion in Weisser. Here's the full text of that footnote:

Specifically, the district court relied on (1) Weisser's repeated parole violations after his release from prison on a child molestation conviction; (2) his repeated failure to register as a sex offender, as required by law; and (3) his 'prior attempts to arrange sexual liaisons with other minors and his prior relationship with a teenage boy.'  Although certain facts of prior conviction are not subject to the Sixth Amendment's protections under the exception established in Almendarez-Torres v. United States, 523 U.S. 224 (1998), the scope of that exception is unclear, see Shepard v. United States, 125 S. Ct. 1254, 1262 (2005); United States v. Fagans, 406 F.3d 138, 141-42 (2d Cir. 2005). Whether or not Weisser's previous parole violations fall within the Almendarez-Torres exception is open to debate, but we think that the other facts upon which the district court relied are 'too far removed from the conclusive significance of a prior judicial record' to fall within the exception.  Shepard, 125 S. Ct. at 1262; cf. United States v. Gutierrez-Ramirez, 405 F.3d 352, 359 (5th Cir. 2005) (relying on Shepard and concluding that district court relied on facts that fell outside of the Almendarez-Torres exception, thus violating the Sixth Amendment); United States v. Washington, 404 F.3d 834, 841-42 (4th Cir. 2005) (same).

July 6, 2005 in Almendarez-Torres and the prior conviction exception, Booker in the Circuits | Permalink | Comments (1) | TrackBack

July 5, 2005

Judicial federalism: diverse state high court Blakely rulings

With all the state Blakely activity recently in North Carolina and elsewhere (background here and here, commentary here), I decided to celebrate our United States during the patriotic weekend by assembling here prior posts reporting on major state Blakely rulings.  Dividing the rulings by whether Blakely was applied or dodged, we have:


Arizona: The Blakely earthquake hits Arizona, reporting on State v. Brown (Ariz. Oct. 27, 2004).

Colorado: Colorado Supreme Court applies Blakely!, reporting on Lopez v. People (Colo. May 23, 2005).

Indiana: The Indiana Supreme Court speaks on Blakely!, reporting on Smylie v. Indiana (Ind. Mar. 9, 2005).

Maine: Big Blakely rulings from the ends of the Union, reporting on State v. Schofield (Maine June 29, 2005).

Minnesota: Minnesota Supreme Court orders Blakely briefing, reporting on Minnesota v. Shattuck (Minn. Dec. 16, 2004).

North Carolina: Huge Blakely day in North Carolina, reporting on State v. Allen (N.C. July 1, 2005).

Oregon: Oregon Supreme Court decides Dilts (and ducks issues), reporting on Oregon v. Dilts (Or. Dec. 16, 2004).

Washington: Big Blakely doings from where it all started, reporting on Washington v. Hughes (Wash. Apr. 14, 2005).


California: California Supreme Court dodges Blakely, reporting on People v. Black (Cal. June 20, 2005).

Delaware: Nationwide Blakely developments in the states, reporting on Fuller v. State (Del. Oct. 29, 2004); see also Benge v. State (Del. Nov. 12, 2004).

Hawaii: Big Blakely rulings from the ends of the Union, reporting on Hawaii v. Maugaotega (Hawaii June 29, 2005).

Idaho: Blakely not a problem in Idaho, reporting on Idaho v. Stover (Idaho Jan. 6, 2005)

New York: New York's highest court upholds state's felony offender law!, reporting on People v. Rivera (N.Y. June 9, 2005).

Tennessee: Tennessee dodges Blakely, so says divided state supreme court, reporting on Tennessee v. Gomez (Tenn. Apr. 15, 2005).

In addition to these 14 rulings, we should not forget that major Blakely cases are in the works in Michigan, New Jersey and Ohio.  (A ruling from New Jersey's Supreme Court could be coming any day, while the Michigan and Ohio cases have not yet been argued in the state's highest court.)

Though the Blakely and Booker decisions are fascinating in their own right, the various ways these Supreme Court opinions are being understood and applied in the states is an amazing experience in what might be called judicial federalism. (Perhaps jurisprudential federalism might be a better term?)

Though I suspect that the stories of Booker in the federal system will continue to capture most of the headlines (and scholarly commentary), the dynamic realities of Blakely in the states might truly be the most interesting sentencing story of the past year.  And, for that reason, I am pleased to be playing a role in future issues of the Federal Sentencing Reporter and the Ohio State Journal of Criminal Law that will be focused on Blakely in the states.

July 5, 2005 in Blakely in the States | Permalink | Comments (1) | TrackBack

Rowe affirmed and also vacated!

In light of all the O'Connor buzz (which is already getting tiresome), I could not help going for the sensational headline.  But, of course, because the only discussions of viability on this blog concerns shaky sentencing precedents like Almendarez-Torres and Harris, the title of this post refers to today's intriguing criminal decision by the Second Circuit in US v. Rowe, No. 04-1142 (2d Cir. July 5, 2005) (available here).

The main issues in Rowe, which concerns a defendant convicted of advertising to receive, exchange or distribute child pornography in violation of 18 U.S.C. § 2251(c)(1)(A), centers around the defendant's arguments "that his posting was not a 'notice or advertisement' within the meaning of § 2251(c) [and] that venue was improper" in the Southern District of New York.  I will leave it to cyberlaw gurus (like Orin Kerr at The Volokh Conspiracy) to figure out if Rowe is big news on those fronts.   

On the sentencing front, Rowe caught my eye because the defendant argues that his sentence of 10 years in prison, imposed pursuant to a seemingly applicable mandatory minimum sentencing statute, violates the Eighth Amendment.  The Second Circuit is able to duck that issue and ultimately remands for resentencing in Rowe because last year it held in United States v. Pabon-Cruz, 391 F.3d 86 (2d Cir. 2004), "that a violation of § 2251(c) did not require imposition of a 10-year mandatory minimum sentence ... [but rather provides] the District Court [with] discretion to sentence defendant to either a fine or a term of imprisonment of not less than ten years or both" (emphasis added).  More on the remarkable Pabon-Cruz case and the Second Circuit's intriguing interpretation of § 2251(c) can be found here and here.

Given that the defendant's guideline range in Rowe was 97-121 months, it is interesting to speculate what might happen on remand in this case in light of post-Booker sentencing realities and the fact that the district court can now impose a fine or a prison term of 10 or more years, but nothing in between.  The defendant has already claimed that a 10-year prison term is unconstitutional and will thus surely also assert that such a term would be "unreasonable."  On the other side, I have to think that the government would consider a sentence to only a fine with no prison time to be "unreasonable."  Could this be a case where, because of the Second Circuit's intriguing interpretation of § 2251(c), it is impossible to impose a "reasonable" sentence under Booker?  What then?

July 5, 2005 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

Applying Ameline all the time

The Ninth Circuit today, through an amended opinion in US v. Moreno-Hernandez, No. 03-30387 (9th Cir. Feb. 18, 2005), amended (July 5, 2005) (available here), clarified an important issue following the circuit's adoption in Ameline of the "limited remand" approach to Booker plain error cases (basics here, commentary here).  In Moreno-Hernandez, the Ninth Circuit concludes that "a limited remand is proper in all pending direct criminal appeals involving unpreserved Booker error, whether constitutional or nonconstitutional." 

In so holding, the Ninth joins the majority of other circuits treating all Booker plain error cases the same.  However, the Fourth and the Tenth Circuits have differentiated plain error cases based on whether a pre-Booker sentencing involved a Sixth Amendment violation in the form of judicial factfinding for a sentencing enhancement.  Given the Supreme Court's recent decision  to reject cert in the Rodriguez plain error case from the Eleventh Circuit (basics here, commentary here and here), this split over whether to apply a unitary or binary approach to Booker plain error may never get resolved.

July 5, 2005 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

More Booker fireworks from the Eighth Circuit

Reinforcing yet again my observations last month about the divergent pace of Booker appeals in different circuits, I see on this official opinion page that the ever-active Eighth Circuit has released another huge bunch of sentencing rulings today.  From a quick scan of the official summaries, I do not think a lot of new ground is broken in this batch of opinions, but I encourage help from readers to spot any important jurisprudential needles in the Booker haystacks that the Eighth Circuit continues to produce.

July 5, 2005 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

Problems in Indiana with advisory fix

This morning brings this interesting AP story from Indiana concerning the state's decision to respond legislatively to Blakely issues by converting its mandatory sentencing system into an advisory system.  In the piece, Prof. Joel Schumm is quoted calling "the new law, which took effect in April, 'a pretty enormous setback' that undid decades of work toward making sentences fairer."  And:

The new law could expose judges to extreme pressure to impose harsher sentences in line with the wishes of victims and their families, Schumm said.  "To be honest with you, I think it could mean a lot more appeals and a lot longer sentences," he said.

The article also quotes lawyer Michael Ausbrook, of INCourts fame.  The piece is headlined "Sentencing law may increase appeals; Change is called 'enormous setback.'"  But for sentencing insiders who would understand the references, a more fitting title might be, "States should be wary of fixing Blakely with Booker."

July 5, 2005 in Advisory Sentencing Guidelines, Blakely in the States | Permalink | Comments (0) | TrackBack

Another editorial against AG's proposed Booker fix

I have linked previously here and here to recent editorials assailing AG Alberto Gonzales speech last month advocating a Booker fix.  (The speech's basics are here, and my commentary can be accessed here and here and here.)  This morning, the The News Journal of Delaware adds this editorial entitled, "It's too soon to say judges are going soft on criminal sentences."  The piece concludes:

Attorney General Gonzales points to a number of similar cases in various states so far in 2005 that ended with disparate results.  His examples are too few to merit the degree of alarm he's trying to provoke.  Judges are still subject to the appeals process and potential reversal.

On the whole, unchaining the judgment of those on the bench returns the court system to the intended balance between prosecution and defense.

July 5, 2005 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0) | TrackBack

July 4, 2005

Blakely and jury trial rights getting serious respect in NC

In suggested in this post that re-reading the Supreme Court's Blakely decision is a fine way to celebrate liberty on the Fourth of July.  In the same vein, I can also recommend reviewing last week's Blakely work by the North Carolina Supreme Court through its Allen opinion and by the North Carolina legislature through its Blakely fix (detailed in this recent post).  In stark contrast to what we have seen in the federal system and in a few states, all the post-Blakely developments in North Carolina give serious respect to jury trial rights and to Blakely's vision of those rights.

The Allen case is a fascinating read because the North Carolina Supreme Court justices are not debating whether Blakely should be found applicable to NC's sentencing guidelines system; Blakely's applicability to aggravating factors is treated almost as a given.  Rather, the big deabte in Allen is whether Blakely violations should be deemed structural errors or subject to harmless error review.   Stating boldly that "the imposition of a constitutional punishment is just as important to a criminal defendant and to society as is a constitutional determination of the defendant's guilt or innocence," the NC Supreme Court declares Blakely errors structural and expresses great concern about judges applying harmless error to "speculate" on issues never presented to juries.

Meanwhile, also giving great respect to Blakely and jury trial rights, North Carolina's now enacted Blakely fix bill, H822, that provides for jury determination of nearly all aggravating factors, including factors that are closely related to prior convictions.  In other words, though the Blakely fix in NC does codify the Almendarez-Torres "prior conviction exception," it gives that exception a narrow reach.  So, rather than adopt an "advisory guideline" dodge of Blakely rights, the North Carolina has simply provided for jury determination of aggravating factors (which is to occur as part of jury consideration of basic guilt/innocence, unless a judge bifurcates in the "interests of justice").  In addition, providing notice as well as jury trial rights, the NC Blakely fix requires the state to give 30 days written notice to the defense of intent to seek an aggravated range sentence.

Kudos to the state of North Carolina for honoring, through all its branches of government, the patriotic values of freedom, democracy and limits on government oppression that I believe are at the core of Blakely's holding.

July 4, 2005 in Blakely in the States | Permalink | Comments (0) | TrackBack

Celebrating liberty, Blakely-style

Us_flag I have plans later today to celebrate liberty by watching a parade and fireworks.  But, showing my true law geek colors, I started today by re-reading Justice Scalia's opinion for the Court in Blakely v. Washington.  Though other recent Supreme Court decisions may also make for good reads on July 4th, I am always inspired by the principles of freedom, democracy and limits on government oppression that I see at the core of Blakely's holding.  As a reminder of how these patriotic values course though Blakely, consider these passages from Justice Scalia's opinion for the Court:

That right [of jury trial] is no mere procedural formality, but a fundamental reservation of power in our constitutional structure.  Just as suffrage ensures the people's ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.

The jury could not function as circuitbreaker in the State's machinery of justice if it were relegated to making a determination that the defendant at some point did something wrong, a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.

There is not one shred of doubt ... about the Framers' paradigm for criminal justice: not the civil-law ideal of administrative perfection, but the common-law ideal of limited state power accomplished by strict division of authority between judge and jury.  As Apprendi held, every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment.

The Framers would not have thought it too much to demand that, before depriving a man of three more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to "the unanimous suffrage of twelve of his equals and neighbours," 4 Blackstone, Commentaries, at 343, rather than a lone employee of the State.

In addition to finding these quotes stirring, these quotes also make me a bit sad in the wake of Booker and some state rulings and legislation that have responded to Blakely by expanding judicial sentencing discretion.  Though there are virtues to enhanced judicial sentencing discretion, that sort of response to Blakely tends to treat the right to a jury trial as a "mere procedural formality" and also diminishes the ability for juries to "function as circuitbreaker in the State's machinery of justice."

July 4, 2005 in Blakely Commentary and News | Permalink | Comments (4) | TrackBack