« CNN with additional coverage of Genarlow Wilson case | Main | Revving up for Claiborne and Rita: shameless self-promotion »

February 17, 2007

Bowman Sorts the Rita/Claiborne Arguments

[Posted by Ron Wright]

Just in time for the oral arguments in Claiborne and Rita, Frank Bowman has drafted a reader's guide to the briefs of the parties and amici in the cases. His intelligent critiques of the briefs and suggestions for the best ordering of affairs in Blakely-land could make a real difference in crafting a new path forward. The essay will be published later this year in the Federal Sentencing Reporter, but this preliminary version is available at the link below. 

Download bowmanthe_question_is_which_is_to_be_master217.doc

February 17, 2007 at 09:10 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Bowman Sorts the Rita/Claiborne Arguments:


At the risk of sounding like a broken record, following my comments yesterday about Vik Amar's article, I have the same concerns about Frank Bowman's article. In the first paragraph, Mr. Bowman writes, "First, the Supreme Court has plunged Sixth Amendment sentencing law down the rabbit hole."

It seems to me, based upon the text of the Sixth Amendment, there simply is no such thing as "Sixth Amendment sentencing law." By its terms, the jury trial right is applicable only to "accused" persons facing "criminal prosecutions." Not "convicted" persons facing sentencing. For me, a citizen's jury trial right ends when a jury decides beyond a reasonable doubt that the defendant committed the crime of which he is accused. He is no longer accused, his peers have said he did it. From that point on he no longer has the constitutional right to have his peers participate in the decision of what sentence he should receive.

I don't understand how Mr. Bowman and Mr. Amar can reconcile their positions about a "Sixth Amendment sentencing law" with Justice Scalia's statement in Ring, which he went out of his way to make, that states who choose to leave the ultimate decision of life or death to a judge may continue to do so. If there is no constitutional role for a jury to play in capital sentencing, it seems to me there is no role in noncapital sentencing. (Justice Breyer's position in Ring notwithstanding)


Posted by: bruce cunningham | Feb 18, 2007 8:06:42 AM


In theory, I'm inclined to agree with what you said in this thread and the earlier one, but it is very difficult to reconcile with Cunningham. A California jury convicts the defendant of, say, robbery by finding the specific, statutorily defined facts that he took the property of another and did it by force. To then impose the upper of the three term choices, the legal requirement is to find some aggravating fact. The statute doesn't say what facts. It could be anything. Can this robbery-plus seriously be considered a different crime? Wouldn't a statute defining the elements of a crime as (1) taking, (2) force, and (3) anything else considered aggravating, be void for vagueness?

Regrettably, the Court has long since departed from the idea that the jury only finds guilt of the crime. The big misstep, IMHO, was Blakely.

Posted by: Kent Scheidegger | Feb 18, 2007 8:41:55 PM

Can we call for a moratorium on academics using that stupid Lewis Carroll quote at the beginning of law review articles?

It makes a great point, but it's been so overused as to have lost its power. Every time an issue of statutory interpretation, constitutional interpretation, regulatory interpretation, contract law, patent claim interpretation, etc. arises, there are inevitably scores of articles in which the author opens by lecturing us through the voice of Humpty Dumpty.

Despite the failure of All the King's Horses and All the King's Men, that stupid character lives on in legal academia.

Posted by: | Feb 18, 2007 9:40:58 PM

Kent, thanks for the comments (I've had trouble posting this. If it appears twice, I apologize.)

I think you are blending together two concepts. First, the question of who convicts people of crimes (juries). And the question of who defines crimes (the legislature).

The problem with the third element of the crime you posed, "anything else considered aggravating" is that it runs afoul of state constitutional separation of powers principles. Because it allows a judge to define the differentiating element between robbery and the greater offense of aggravated robbery. The legislature can't delegate that authority to the judiciary.

This argument is not original with me. A prosecutor told me that he simply didn't see how he had authority to suggest to a judge what aggravator not enumerated in the statute should be found. Because then he and the judge would be defining a new "customized crime" applicable to that particular defendant. In the United States we don't have customized crimes. That is what the Bill of Attainder clause is all about.

I think Cunningham not only reaffirms Blakley, it goes one step further and clarifies what the word "penalty" in the Apprendi Rule means. Justice Ginsburg makes clear in Cunningham that the Sixth Amendment prohibits a defendant being EXPOSED to a sentence higher than allowed by the verdict or plea alone, regardless of whether he receives such a sentence.

For example, in Cunningham, suppose the judge found one aggravator and three mitigators and IMPOSED a lower level sentence. I believe that Cunningham makes clear that there would be Blakely error even though the defendant actually received a low range sentence. Because the judge convicted Cunningham of a greater offense than the jury did (because he was exposed to a greater sentence) in violation of the Sixth Amendment.


Posted by: bruce cunningham | Feb 18, 2007 9:43:14 PM

Although who defines crimes and who convicts of crimes are separate questions, they have the common element of what is a crime.

I gather you are agreeing with me that treating the finding of an unspecified aggravating fact as an element of a crime, as Cunningham does for Sixth Amendment purposes, would render the whole triad system invalid even if the jury does make the finding, either on due process principles such as I suggested or separation of power principles such as you suggest. However, the difference is that you consider that a valid conclusion, while I consider it to demonstrate that Blakely was wrongly decided in the first place, and these aggravating facts are not elements.

On your last point, I don't think Cunningham even indicates, much less makes it clear, that there can be a Blakely error in the absence of actually imposing the upper term.

Posted by: Kent Scheidegger | Feb 18, 2007 10:49:06 PM

Hopefully others will ignore my anonymous comment at 9:48, but in case some read it, I'm writing to apologize. That Carroll quote drives me nuts, but it was inappropriate of me to inject that thought into an otherwise thoughtful discussion of important sentencing issues.

Posted by: | Feb 18, 2007 11:13:50 PM

In my opinion, Bowman's argument regarding the positions of the petitioners in Rita and Claiborne is flawed, because he insists that "reasonableness review" be analyzed through the lens of statutory construction. "Reasonableness review" is not a creature of Congress; it is purely the creation of the Supreme Court in Booker. So no amount of statutory-construction analysis will help explain the problems/opportunities inherent in the Court's explication in Rita and Claiborne of reasonableness review. (Maybe the Alice in Wonderland quote works fairly well after all?)

As for Bruce's comments (on this post and in response to the post about V. Amar), the Sixth Amendment absolutely applies to sentencing -- at least when positive law (whether created by Congress or the USSG) restricts the sentences that that may be imposed upon a conviction. When Congress or its delegate (the USSG) provides that a defendant MUST be sentenced to an extra __ months because of a fact (e.g., amount of money, amount of drugs, possession of a firearm, possession of a bomb, unique skill on the part of the defendant), the right of the defendant to have that fact determined by a jury directly implicates the Sixth Amendment (and, in federal cases, the Grand Jury right of the Fifth Amendment, IMHO). In our system of checks and balances, the absence of discretion on the part of the judge creates the need for the protective power of the Sixth Amendment jury. Otherwise, there's no check on the power of the legislature. In Booker/Fanfan, the Supreme Court vindicated this fundamental principle, allowing the Sixth Amendment jury to protect us from the Congress and a mechanistic judicial system. That protection would not be necessary if we were protected by a judiciary empowered with sentencing discretion, but Congress, in the SRA, (unconstitutionally) tried to eliminate that discretion.

If "reasonableness review" operates to restrict district judges' sentencing discretion (like it's operating in reality now), then the unconstitutional portions of the SRA will have been effectively revived. I know that's what a lot of people want, but, personally, the way appellate courts have treated reasonableness review shows why the nation passed the Sixth Amendment in the first place -- it's a check on the Congress AND on the judiciary.

I sincerely hope that Justice Ginsburg will decide that her vote with the "merits" majority in Booker meant something. A vote with Justice Breyer on "reasonableness review" would be a vote for nothing more than heightened appellate judicial power. (Justice Breyer doesn't even trust the district judges any more.) That would be such a waste of so much effort on the part of so many, at least since Mistretta, to bring reason and common sense to our criminal-justice system.


Posted by: Mark | Feb 19, 2007 5:25:34 PM

Mark, in your hypothetical about the finding of a fact requiring a mandatory sentence, I believe the Sixth Amendment requires that fact to be found by a jury because that fact is an element of a greater offense, not because Apprendi/Blakely bestows on juries a role to play in sentencing. The impact on the sentence is simply because the sentence flows directly from the finding of guilt to a greater offense. How do you reconcile your position with Justice Scalia's concurrence in Ring?

Kent, yes , we agree on the first point that the use of the ag you posed would violate the constitution. Your second comment about Cunningham and exposure to punishment versus imposition of actual sentence triggering Blakely error requires a longer response about why, in my opinion, Stevens used the word "penalty" instead of "sentence" in the Apprendi Rule. I'll compose the response and post it hopefully tomorrow.


Posted by: bruce cunningham | Feb 19, 2007 11:19:56 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