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June 26, 2006

A few quick thoughts on Recuenco

A quick read of the Supreme Court's Blakely work in Recuenco (opinion here) provides a lot of interesting tea leaves to read.  Here are just a few quick observations, with more commentary to follow later:

1.  The court's decision was on a 7-2 vote, with only Justices Stevens and Ginsburg dissenting.   Perhaps the most surprising (silent) member of the majority is Justice Scalia, who was the author of Blakely and a vocal dissenter in the key precedent that the majority relies upon to declare that Blakely errors can be harmless (this post details Justice Scalia's prior assertions that jury trial errors should be seen as structural).

2.  Justice Thomas' opinion has some broad language about "sentencing factors" that might be read — and certainly could be misconstrued — to extend the reach of BlakelySee Recuenco, slip op. at 6 ("we have treated sentencing factors, like elements, as facts that have to be tried to the jury and proved beyond a reasonable doubt"); id. at 7 (discussing the Court's "recognition in Apprendi that elements and sentencing factors must be treated the same for Sixth Amendment purposes").  Both of these assertions — which carry seven votes, including those of the two new Justices — raise the stakes on what exactly counts now as a "sentencing factor."

3.  Justice Kennedy writes an opaque little separate concurrence which seems to signal that he still does not accept Apprendi and Blakely.  Notably, Justice Breyer does not sign on to this tea leaf concurrence (nor does, for that matter, Justices Alito and CJ Roberts).

4.  The author of the main dissent on the merits is Justice Ginsburg, who writes as if she was the strongest believer in the full panoply of Blakely rights.  But, as the majority-jumping Justice in Booker who allowed for federal defendant to have their procedural rights at sentencing gutted, I am surprised she is a vocal dissenter here.  Might this dissent signal that she is disappointed with how the post-Booker world is unfolding?

June 26, 2006 at 12:08 PM | Permalink


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Tracked on Jun 26, 2006 2:54:46 PM


I have a lot more to say, but for now I'll repost my comment to Prof. Berman's earlier post announcing the decisions:

On a quick reading of Recuenco, one of the biggest surprises is that Justice Scalia -- without explaining why in a concurring opinion --joined the majority opinion in spite of his dissent in Neder (failure to submit element to jury is structural error) and the views he expressed in Apprendi, Ring, Blakely and Booker. The only rational explanation that coms to mind is that Justice Scalia has accepted the Neder majority's holding for stare decisis purposes, and so feels logically compelled to joing the Receunco majority's holding.

For us federalism buffs, one of the most important statements in the majority opinion comes in footnote 1 and states that "Respondent’s argument that, as a matter of state law, the Blakely v. Washington, 542 U. S. 296 (2004), error was not harmless remains open to him on remand." This means that the Washington Supreme Court remains free on remand to accept Recuenco's principal argument (i.e., that the State court's earlier remedial rulings preclude harmless-error analysis -- an argument I disagree with), or to do what the New Jersey Supreme Court did in State v. Franklin (i.e., conclude that Apprendi errors are structural as a matter of state remedial law. See Steven G. Sanders, New Jersey Goes Its Own Way, 182 N.J.L.J. 237, Oct. 24, 2005, at 29.)

Posted by: Steve | Jun 26, 2006 12:32:43 PM

Another interesting tea leaf can be found near the end of Justice Ginsberg's dissent:

"Today's decision, advancing a greater excluded (from jury control) offense notion, diminishes the jury's historic capacity 'to prevent the punishment from getting too far out of line with the crime.' United States v. Maybury, 274 F.2d 899, 902 (CA2 1960) (Friendly, J.); see also Blakely v. Washington, 542 U.S. 296, 306 (2004) (recognizing jury's role 'as circuitbreaker in the State's machinery of justice')."

Might this be a subtle endorsement of jury nullification, or, at a minimum, of informing the jury of the sentencing range for the charged offense? After all, how can a jury "prevent the punishment from getting too far out of line with the crime" if it isn't aware of the possible sentencing consequences of the findings it is asked to make?

Posted by: Brad | Jun 26, 2006 2:55:40 PM

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