« Capital habeas reform in Patriot Act | Main | Booker March madness set to begin with a hearing double-header »

March 9, 2006

Minnesota urging SCOTUS to embrace offense-offender Blakely distinction

In writings since Blakely, I have argued that the Sixth Amendment ought to be interpreted to distinguish between offense conduct and offender characteristics.  In the article Conceptualizing Blakely, 17 Fed. Sent'g Rep. 89 (2004) (available here), I explain most fully why I think the text of the Constitution "connotes that the jury trial right attaches to all offense conduct for which the state seeks to impose criminal punishment, but also connotes that the jury trial right does not attach to any offender characteristics which the state may deem relevant to criminal punishment." 

I am now pleased to report that, in seeking cert on a state Blakely case, the Minnesota Attorney General is arguing to the Supreme Court that Blakely should be "limited to facts related to the offense itself."  Needless to say, I am convinced by the well-crafted argument in favor of an offense-offender distinction put forward by Minnesota in its cert petition in State v. Allen (which is available for download below).  But only time will tell if SCOTUS is interested in this case or the distinction.  Here are Minnesota's reasons for granting the petition in Allen:

This case presents this Court with an opportunity to answer an important question on which lower courts are split: Does Blakely only apply to facts about the crime that affect sentencing (offense-related facts, e.g., whether a gun was used in the crime)?  Or does it apply more broadly to include facts about the perpetrator (offender-related facts, e.g., whether the offender is amenable to probation)?

That this is an important question cannot be seriously disputed: the answer will have a direct and significant effect on numerous states, and will have an indirect effect on every legislative body considering sentencing reform.  Further, in reading Blakely expansively and rejecting any distinction between offender-related and offense-related facts, the Minnesota Supreme Court ignored both the plain language of the United States Constitution and Blakely's animating principle.

Download minn_cert_petition_in_allen.pdf

Some related posts:

March 9, 2006 at 01:38 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Minnesota urging SCOTUS to embrace offense-offender Blakely distinction :


I'm an appellate defense lawyer. I understand that there may well be text-based and policy arguments supporting this approach. But how does it differ from the "elemental" vs. "sentencing factor" distinction that the Supreme Court explicitly rejected in Apprendi? Wouldn't they have to limit Apprendi to its facts in order to adopt this approach? If so, what are the chances that they would do that, given that all 5 judicial residents of "Apprendi-land" are still on the Court?

Posted by: Andrew Fine | Mar 9, 2006 2:12:32 PM

I work in the public defender's office that is defending the judgment in Minnesota v. Allen.
With that caveat, I am not suprised Professor Berman is "convinced" by the
State's argument, as he is the only legitimate authority cited by the State in favor of it.
The Arizona statute in Ring, arguably, included
offender-based facts, yet the Supreme Court makes no distintion in the Ring opinion between these facts and the offense-based facts.

Posted by: Roy Spurbeck | Mar 9, 2006 3:04:18 PM

I am pleased to not just be considered an authority, but a "legitimate" one at that.

Posted by: Doug B. | Mar 9, 2006 3:09:26 PM

Doug, I am working hard to try to understand your position on the offense/offender characteristics dichotomy. I would like to pose a hypothetical and ask a question.

Suppose Mr. Jones, a businessman, has fallen on hard financial times, which has put pressure on both his company and his marriage. His wife left him, taking with her their five children. Distraught over the circumstances, Jones decides to burn his company building and collect substantial insurance proceeds. On the night of the fire, the state alleges that Jones has with him a small pistol which he took with him in case he was discovered.

Jones was arrested and charged with arson. Under the state's structured sentencing law, arson with no aggravators carries a sentence range of 5 to 10 years. If one aggravator is found, the available range of sentence is increased to 10 to 15 years. The state legislature has included among a list of aggravators these two--"the def committed the offense while armed with a deadly weapon" and "the defendant does not support his family."

Mrs. Jones, who was already put out with Mr. Jones, goes to the DA and says Mr. Jones did not support their children. Jones denies that and protests that in fact he was very generous to the family but Mrs. Jones squandered away the family money. Jones also denies that he had a gun when he committed the offense.

A finding of either aggravator increases the potential punishment by five years.

Are you contending that the Sixth Amendment prohibits a judge from determining whether Jones committed arson while armed with a gun (which is an offense characteristic), but permits a judge to determine the factual dispute of whether Jones supports his kids? (clearly a offender characteristic) Either determination increases the potential punishment Jones faces above the level allowed by the verdict of guilty to arson alone. thanks, bruce

Posted by: bruce cunningham | Mar 10, 2006 10:00:01 PM

Yes, Bruce, my argument would make this distinction, and I think it makes a lot of sense if you focus on what Jones' jury trial for arson should be about.

Why should whether Jones supports his kids be an issue for the jury in deciding whether he is guilty of arson? Wouldn't consideration of this issue distract and perhaps prejudice the jury as they try to figure out if Jones committed arson.

In contrast, his carrying of a gun while committing the offense conduct seems quite relevant and important to understanding what Jones did the night of this crime. Having his gun possession discussed with the jury would neither distract nor unfairly prejudice the jury considering the arson charge.

Keep in mind, I view the jury issue distinct from the burden of proof issue that is covered by the 5th Amendment. I would argue that ALL there findings should have to be beyond a reasonable doubt, but I think it make perject sense to have the gun issue go to the jury, and the child support issue go to the judge.


Posted by: Doug B. | Mar 12, 2006 11:03:53 AM

asus l3d battery

Posted by: | Oct 14, 2008 10:50:27 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB