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February 11, 2007

Revving up for Claiborne and Rita: will due process play any role?

In an article that's now almost two years old, entitled "Beyond Blakely and Booker: Pondering Modern Sentencing Process" (available here), I spotlighted that the Apprendi cases involve, both expressly and implicitly, an array of constitutional provisions and principles beyond just the Sixth Amendment's jury trial right.  (Stephanos Bibas and I highlighted this point as well in our more recent article, "Making Sentencing Sensible" (available here).)

This weekend, when I finally read closely the Third Circuit's recent en banc magnum opus on sentencing burdens of proof in Grier (discussed here), I started wondering if constitutional principles other than the jury trial right might play a role in Claiborne and Rita.  Significantly, early rulings in the Apprendi line of cases (especially Jones) made repeated mention of due process and notice concerns implicated by judicial fact-finding at sentencing.  But later rulings like Blakely and Cunningham and especially the Booker remedy have dodged any real discussion of due process principles distinct from jury trial rights.

All of the thoughtful opinions in Grier (available here) provide an extraordinary account of how uncertain and debatable due process holdings and doctrines are after Blakely and Booker.  Pre-Blakely rulings like Harris and Watts and McMillan are formally still good law.  But many passages in Blakely and Booker raise many new questions, and new Justices (and the evolving views of old Justices) might be drawn to due process issues as they reflect on ugly aspects of post-Booker jurisprudence in lower courts.

Of course, due process questions are not formally before the Court in either Claiborne and Rita.  Nevertheless, Judge McConnell's great recent work in Medley (discusses here) highlights yet again that potential due process issues can lurk around every corner of any complex guideline-based sentencing system.

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Doug, I believe that Apprendi/Blakely is fundamentally grounded on the "Granddaddy" of all due process rights--the right to notice of what the crime is "that the state actually seeks to punish." (Look at Stevens' dissent in Recuenco about why the majority opinion is not going to have a lot of significance and that the big structural error is lack of notice.

I have been litigating "Blakely-like" issues for almost 10 years under North Carolina's Structured Sentencing Law. Until now, the arguments had no traction. For example, I had a case where, upon conviction, the DA stood up and said that he didn't think there were any aggravating factors and the sentence should be in the middle range. On his own, the Judge came up with a "nonenumerated aggravating factor", which nobody thought about, found that it existed and imposed an upper level punishment. I argued against it, but I was arguing against the person who came up with the idea to start with. Guess who lost.

A couple years later, we were doing a sentencing hearing and the DA conceded that there were no aggravators specified in the statute. The DA leaned over to me and whispered, "I wonder what unenumerated aggravator he'll think of this time." The ag was "The defendant did not voluntarily surrender the murder weapon to the police.", the judge found his own suggested ag, and imposed a high level punishment.

As the beginning of a laundry list of constitutional rights which I think are implicated by Apprendi/Blakely, I would nominate 1)the right to notice, 2)the right to be free from ex post facto punishment, 3)the right to be free from double jeopardy (by trying the def first for the basic crime and then again for the aggravated version of the crime, 4)the right to counsel (I get appointed on the basic crime, an ag is alleged, then the defendant is without counsel on the aggravated larceny charge)

I am litigating each of the above claims before the North Carolina courts.


Posted by: bruce cunningham | Feb 11, 2007 8:41:09 AM

I forgot another state constitutional right. Separation of powers, when the aggravating factor is an unenumerated factor, whether it is requested by the DA or thought of by the judge on his own. Only the legislature can create a crime, because in the United States we don't have "customized crimes." (another implicated constitutional right- the right to be free from "bills of attainder" or crimes created especially for one person)

So, when the DA requests an agg which was not enacted by the legislature, but left to the discretion of a judge to dream up, the DA is proposing the creation of a new crime which applies only to that defendant, and then if the judge finds it, a new crime, such as "Felonious Larceny by a Person Who Had Broken Into the Same House Before" is created and it applies just to the person on trial. (a real case in NC)

This argument was given to me by a DA in the western part of the state who told me he just didn't see how he had the authority under the constitution to suggest to the judge the creation of a new crime. I think he's right.


Posted by: bruce cunningham | Feb 11, 2007 8:50:42 AM

Doug, I've thought of another right a friend is litigating. The right secured by the Sixth Amendment to not have counsel concede a defendant'guilt without consent. Nixon v Florida.

Before Blakely counsel could concede the existence of an aggravating factor because it was simply a sentencing factor. Now, the existence of one ag is an element of a greater crime and therefore a lawyer cannot concede that his client is guilty of a criminal offense without permission.


Posted by: bruce cunningham | Feb 11, 2007 4:22:07 PM

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