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March 15, 2008

Yet another insightful ivory tower view of modern sentencing realities

The stack of important academic reading for Blakely and Booker fans gets even longer with this new piece now on SSRN authored by Professors Stephanos Bibas and Susan Klein. This article is simply titled "The Sixth Amendment and Criminal Sentencing," and here is the abstract:

This symposium essay explores the impact of Rita, Gall, and Kimbrough on state and federal sentencing and plea bargaining systems.  The Court continues to try to explain how the Sixth Amendment jury trial right limits legislative and judicial control of criminal sentencing. Equally importantly, the opposing sides in this debate have begun to form a stable consensus.  These decisions inject more uncertainty in the process and free trial judges to counterbalance prosecutors. Thus, we predict, these decisions will move the balance of plea bargaining power back toward criminal defendants.

March 15, 2008 at 10:28 AM | Permalink


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Doug, with respect to Professors Bibas and Klein, I believe that the title to their piece, "the Sixth Amendment and Criminal Sentencing" reveals that they misperceive the doctrinal foundation of Apprendi/Ring/Blakely and underestimate the implications of the line of decisions. Early in the article they write "How did the Sixth Amendment right to a criminal jury trial on some sentencing facts..."

I believe that Apprendi/Ring/Blakely make clear that the Sixth Amendment has nothing to do with criminal sentencing. Justice Scalia says to Justice Breyer in Scalia's concurring opinion in Ring v Arizona, "Unfortunately (for Justice Breyer's position in Ring) today's judgment has nothing to do with jury sentencing") Likewise, Justice Thomas, whose vote switch from Almendarez Torres made Apprendi possible, begins his Apprendi concurrence with the succinct statement that the decision is about "simply put, what is a crime?"

Bibas and Klein are, in my opinion and I think Scalia's, "on the wrong plane, they should get off before the doors close or buy a ticket to Apprendi-land"

To me, as a state criminal defense lawyer, the long term effects of Apprendi/Blakely will be felt in such areas as the defendant's right to notice of "the crime the state actually seeks to punish" (Scalia in Blakely) This week I am arguing in three capital cases that NC state pre Ring law that a prosecutor does not have to reveal what aggravating factors the state contends makes a def eligible for death, cannot withstand Apprendi/Ring. Because now the finding of one aggravator is an element of a greater offense and the def is entitled to know what crime the state says he committed.

I am also arguing that NC law that the Rules of Evidence do not apply to the determination of aggravators cannot stand after Apprendi, because the finding of one aggravator is an element of a new, greater substantive crime and by its own terms the Rules of Evidence apply to the trial of crimes. They do not apply to the finding of mitigators since that is a pure sentencing process.

I think Bibas and Klein sell the Sixth Amendment line short. It will have huge impact , but the effect will be in how the new set of aggravated crimes will be tried, not how sentencing will be conducted.

I'll let you know how the judges view my Apprendi based arguments that the basic rules of trying crimes has changed. As a further support for my notion that at its core Apprendi and Blakely are all about notice of what crime the def faces, look at Stevens' dissent in Recuenco v Washington.

bruce cunningham

Posted by: bruce cunningham | Mar 15, 2008 5:40:45 PM

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