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October 27, 2006
Big Blakely retroactivity doings from Alaska
Continuing its amazing work as the Blakely frontier, today in Smart v. State, No. A-9025 (Alaska Ct. App. Oct. 27, 2006) (available here), the Alaska Court of Appeals issued an opinion regarding Blakely retroactivity. Here's a summary as reported to me by a helpful reader:
The court held that it was not bound by the federal Teague standard and was free to apply state retroactivity standards, and applying state retroactivity law found Blakely fully retroactive in a 97-page opinion (counting concurrences and dissents). The state will likely seek discretionary review from the Alaska Supreme Court.
WOW!
UPDATE: I have now had a chance to give Smart a quick read, and the main opinion's exegesis of Teague is especially impressive and its citation to wikipedia is especially amusing. All the separate opinions are also great reads.
October 27, 2006 at 06:24 PM | Permalink
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Comments
I am a new Assistant Public Defender at the Barrow, Alaska, Public Defender's Office.
Posted by: Ken Blackstone | Oct 27, 2006 7:20:53 PM
Doug-
the big issue that I see in Alaska, given the Carlson case concerning bench-marks, is now you have two classes of defendants. One class gets Blakely protections, the other does not even though there is fact finding in both. I think the Smart decision creates an avenue to attack Carlson on equal protection basis. The distinction between "court created benc-marks" as compared to legislative should not hold up under state and federal equal protection and due process. Any thoughts?
-I should note I have several bench-mark cases.
-Randall
Posted by: randall cavanaugh-defense attorney Alaska | Oct 27, 2006 8:18:49 PM
I believe the Alaska Court of Appeals continues to misperceive the fundamental principle of Blakely. That is, Blakely is not about bestowing on the jury a constitutional role to play in sentencing. Rather, it is, as Justice Thomas said in his opening line in his Apprendi concurrence, about "simply put, what is a crime?"
Note that on page 39 the opinion states that Blakely error occurs only when the actual sentence "imposed" , based on factfinding by the judge, exceeds the top of the presumptive. "a Blakely violation undermines the factual foundation of the sentencing court's authority to impose an increased punishment on the defendant. (ie. a punishment exceeding the applicable presumptive range) Compare the use of the word "imposed" by Judge Mannheimer with Justice Scalia's repeated use of the word "exposed" in his short Apprendi concurrence. And Justice Stevens' similar use of "exposed" in the sentence following the stament of the rule in Apprendi. (and Stevens' use of the word "penalty" instead of "punishment" in the Rule)
In my view, there is no such thing any more as "increased punishment", above the statutory maximum. Rather, now we have greater crimes, due to the conversion of aggravators into elements, and every sentence is now WITHIN the statutory range, never in excess of the statutory range.
Bruce Cunningham
Posted by: bruce cunningham | Oct 28, 2006 12:24:37 AM
The very issue decided in this case -- whether Teague binds the state courts -- is pending before the SCOTUS in a pending cert petition, one that the Court appears to be holding pending its resolution of Wharton v. Bockting. That is New Mexico v. Forbes, and the New Mexico Supreme Court there retroactively gave the defendant the benefit of Crawford's new rule on state habeas relief. The state argued that Teague compelled the court to deny relief, and asks the SCOTUS to declare that the Supremacy Clause obligates the states to give federal decisions no broader effect than federal courts give them.
I addressed why the argument in New Mexcio's cert. petition was wrong in an op-ed published in the National Law Journal on July 3rd: “Getting it Backward,” National Law Journal, July 3, 2006, at 27. I argued there that
The premise underlying New Mexico’s petition — i.e., that state courts may not apply Crawford’s holding retroactively on state collateral review if Teague bars federal courts from doing so on federal habeas review ... ignores the first principles of federalism. . . . [T]he prospect of state courts invoking state law to give broader retroactive effect to new rules of criminal procedure than do federal courts offends no constitutional principle whatsoever. On the contrary, it reinforces the core values of federalism inherent in our constitutional system.
Three cheers to the Alaska Court of Appeals for getting it right.
Posted by: Steve | Oct 28, 2006 11:26:14 AM
I found Steve's comments interesting because the Minnesota Supreme Court ruled the exact opposite from the New Mexico Court holding Teague must be followed in a case dealing with Crwaford's retroactivity. What a mess.
Posted by: Roy Spurbeck | Oct 28, 2006 6:50:07 PM
My prediction for the pending case: SCOTUS will lean toward not allowing state courts to interpret Teague retroactivity differently in different circuits. But they will somehow also try to, or should, uphold the fundamental principles which Blakely upholds: the right to a fair trial, a fact-finding process by "beyond a reasonable doubt" standard, even or especially where it affects sentencing, and especially where it could increase a sentence by even one day outside of the presumptive guideline range. I presume we still do have a "guideline" range, even if it not strictly mandatory.
Meanwhile, I need to go back and read that Alaska decision more completely. So far I've read the last opinion only in part, but was very encouraged so far in the sense that I see a well reasoned argument resting on protection of fundamental principles of guilt/innocence and fact-finding in favor of actual truth-seeking and fairness, and not the usual presumption that accused and convicted individuals are presumptively guilty and no errors could have happened that might have changed the outcome.
The presumption that needs to be rolled back, and which this decision seems to acknowledge, is the one that fails to consider the possibility that errors in the system do occur, including gratuitous prosecutorial and police coercion, attorney incompetence, and other failures; it is well worth every minute expended reviewing for fairness and error in order to give greater respect for the law.
Doesn't it seem inevitable after Blakely and Booker that the next step would be to apply the principles retroactively?
Posted by: Major Goodbar | Oct 28, 2006 9:21:46 PM
I liked Steve's comment:
[T]he prospect of state courts invoking state law to give broader retroactive effect to new rules of criminal procedure than do federal courts offends no constitutional principle whatsoever. On the contrary, it reinforces the core values of federalism inherent in our constitutional system.
If I understand this correctly, however, a state court ruling granting relief can always be reviewed by a federal court, SCOTUS, should the State appeal. If SCOTUS then applies the narrow interpretation to the same "new rule" can the State ever enforce its broader retroactivity ruling?
Posted by: Major Goodbar | Oct 28, 2006 10:22:43 PM
In response to Major Goodbar's question, the SCOTUS would lack jurisdiction to review a state court decision applying a federal precedent more broadly than Teague requires because such a decision would be based on the state law of remedies.
Posted by: Steve | Oct 29, 2006 1:49:19 AM
The Alaska Court of Appeals is correct, IMHO, that states need not follow Teague if they choose not to, and if Alaska Supreme Court precedent says to use the discredited Linkletter rule, that is the law of Alaska until the Supreme Court or the Legislature says otherwise. And one of them should say otherwise as soon as possible.
Posted by: Kent Scheidegger | Oct 29, 2006 8:16:58 PM
