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January 23, 2006

Looking ahead to SCOTUS Blakely action

As detailed over at SCOTUSblog, there wasn't any notable sentencing action in the Supreme Court's work today and now the Court goes into recess for four weeks.  Not only does this schedule allow everyone plenty of time to enjoy SuperBowl hype, it also provides time to gear up for the notable Blakely action that will be on tap when the Justice get back to work.  Specifically, there are at least two big Blakely stories that will unfold in the coming months:

Folks interested in these and other state Blakely stories should be sure to check out this recent issue of the Federal Sentencing Reporter, which provides thorough and thoughtful coverage of the state of Blakely in the States.  More background on that issue is available at this post.

UPDATE:  Based on this post about the argument schedule at SCOTUSblog, it now appears that Recuenco won't be argued until April (even though cert. was granted well before some of the cases now scheduled to be argued in March).  Hmmmm.

January 23, 2006 at 11:07 AM | Permalink


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The Supreme Court determined in 1980 that a criminal defendant’s right to “punishment fixed by the jury” is more than “merely a matter of state procedural law”, and Hicks was prejudiced by the court’s instruction withholding the jury’s discretion. “By statute in Oklahoma, a convicted defendant is entitled to have his punishment fixed by the jury. Okla. Stat., Tit. 22, [447 U.S. 343, 346] 926 (1971). 3 Had the members of the jury been correctly instructed in this case, they could have imposed any sentence of "not less than ten . . . years." Okla. Stat., Tit. 21, 51 (A) (1) (1971). The possibility that the jury would have returned a sentence of less than 40 years is thus substantial. It is, therefore, wholly incorrect to say that the petitioner could not have been prejudiced by the instruction requiring the jury to impose a 40-year prison sentence.” HICKS v. OKLAHOMA, 447 U.S. 343 (1980)
“Where, however, a State has provided for the imposition of criminal punishment in the discretion of the trial jury, it is not correct to say that the defendant's interest in the exercise of that discretion is merely a matter of state procedural law.”HICKS v. OKLAHOMA, 447 U.S. 343 (1980)
Subsequent to the petitioner's conviction, the provision of the habitual offender statute under which the mandatory 40-year prison term had been imposed was in another case declared unconstitutional by the Oklahoma Court of Criminal Appeals. Thigpen v. State, 571 P.2d 467, 471 (1977).
Washington v. Recuenco, 05-0083, recognizes the same type error, in that the discretion of the jury is indeed the corner post of the “fair trial structure” and as stated in Hicks, this is no mere procedural formality, id. See Blakely , same. The Hicks Court, found prejudice to be presumed where the jury’s authority is usurped by instruction and likewise by amendment to the verdict as in Recuenco.

Posted by: Barry Ward | Jan 23, 2006 12:45:27 PM

My office made the Hicks argument in U.S.v.Gonzalez-Huerta, 403 F.3d 727(10th Cir. 2005)(en banc). The 10th circuit wasn't persuaded, see id. at 732n.2,although I couldn't agree with your Hicks analysis more.

Posted by: jmw | Jan 23, 2006 4:34:10 PM

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