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April 1, 2007

Sixth Amendment clarity in the midst of March Madness

I recently noted here the big habeas development from New York in the form of Portalatin v. Graham, No. 06 CV 5002 (EDNY Mar. 22, 2007) (available here).  I have now had a chance to read Portalatin closely; Judge Gleeson's work is exceptional and should be read in full by all Blakely followers.  Of particular note is how, in finding New York's discretionary persistent felony offender statute unconstitutional, Portalatin highlights (and rejects) New York's effort to take a functional approach to the reach of the Sixth Amendment:

Rosen posits a world in which factfindings necessary to imposition of an enhanced sentence -- beyond the prior convictions that render the defendant merely eligible for one -- may be allocated between judge and jury by reference to the "traditional roles" of each. As elaborated upon by Brown, in that world, offense elements or their "functional equivalents" must be submitted to juries, but "amorphous" determinations regarding a defendant’s history and character, and whether extended incarceration and life-time supervision are necessary, may properly be made by a preponderance of the evidence by judges. I accept, as I must, Brown's holding that such a world constitutes a not-unreasonable application of Apprendi, but I think it clear that it is now contrary to (and objectively unreasonable in light of) Ring and Blakely.

Though I am not sure I agree completely with Portalatin's analysis, I am sure Judge Gleeson has produced one of the strongest recent Sixth Amendment decisions.

April 1, 2007 at 11:08 PM | Permalink


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Doug, Portalatin is extraordinary, and right. I have already started working on a motion to apply its reasoning to habitual felon cases in North Carolina, with a slight twist. Suppose a prosecutor has a policy in the office concerning when the habitual felon enhancement will be used. Is the determination of facts which satisfy the criteria subject to the Sixth Amendment? I am arguing yes, in light of the fact that under a system of mandatory minimums on a sentencing grid, prosecutors have more to do with sentence than judges. Therefore the decision of whether a policy in the DA's office has been made is functionally a judicial determination. Bruce Cunningham

Posted by: bruce cunningham | Apr 1, 2007 11:18:59 PM

I think that this case is probably the limit of Apprendi and progeny. I wonder if there are 5 votes on the Supreme Court to overturn NY's law. If there is serious doubt about whether the law would be upheld or not, I think it difficult to conclude, logic aside, that a decision is unreasonable. Of course, the Supreme Court is not always known for its logical consistency, see, e.g., Dickerson.

Posted by: federalist | Apr 1, 2007 11:23:10 PM

federalist, I think you are underestimating how, at the same time, Apprendi is simple and revolutionary. It is simply a return to how criminal law was when I started practicing 33 years ago. Back then, if the jury convicted someone of a crime, no factfinding by judges , or no prior convictions could result in a sentence greater than the sentence that was allowed for the conviction returned by the jury.

Also, if Doug wins Faulks, and extends Apprendi principles into postconviction decisions, like parole or probation revocations, you'll see another shock wave.

It puzzles me why folks aren't willing to admit that in North Carolina we have been sentencing people unconstitutionally for 12 years, since the Structured Sentencing law went into effect.

Of course, if Almendarez Torres falls, as Thomas constantly insists it must, you'll see yet again another shock wave. But, as I said, for old guys like me it will be a simple acknowledgement that what we were doing thirty years ago was constitutional. What we are doing now is not.

Bruce Cunningham

Posted by: bruce cunningham | Apr 2, 2007 7:29:25 AM

Apprendi is very simple. Agreed. But how far it goes is not--

I wonder if there are 5 votes to overturn NY's statute.

Posted by: | Apr 2, 2007 9:44:20 AM

I think the more important question here is the AEDPA question -- not whether the Court would overturn NY's law on direct review, were it given the chance.

Posted by: steve | Apr 2, 2007 11:52:42 AM

You don't have to overrule A-T to conclude that the NY law flunks Apprendi, Blakely, and Cunningham. It's NOT just the fact of a prior conviction, and that's the difference. This thing gets affirmed by the 2nd circuit and never makes SCOTUS.

Posted by: Anon | Apr 2, 2007 1:03:38 PM

I think there are six votes to throw out
the NY law, the same six in Cunningham v

I also think that AEDPA is not a probleem,
given Ginsburg's insistence in Cuningham that
"This Court has REPEATEDLY held that, under
the Sixth Amendment, any fact that EXPOSES
a defendant to a greater POTENTIAL sentnece
must be found by a jury , not a judge, and
established beyond a reasonable doubt, not merely
by a preponderance of the evidence."

bruce cunningham

Posted by: bruce cunningham | Apr 2, 2007 2:58:48 PM

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