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February 27, 2009

Alaska Supreme Court rejects Blakely retroactivity claim

Thanks to a helpful reader, I learned that the Alaska Supreme Court today issued a big ruling reversing a lower court determination that Blakely should be given retroactive application.  Here is how the opinion in Alaska v. Smart, No. S-12493 (Ak. Feb. 27, 2009) (available here) gets started:

The question presented in these two cases is whether the right to a jury trial announced in Blakely v. Washington should be retroactively applied to two state defendants, Troy Smart and Henry Douglas, whose sentences were final before June 24, 2004, when Blakely was decided.  Blakely requires that any fact — except a fact admitted by the defendant or the fact of a prior conviction — necessary to increase a sentence above the statutory presumptive maximum be proved to a jury beyond a reasonable doubt.  We decline to give Blakely full retroactivity.  We conclude that the purpose of Blakely does not raise serious questions about the accuracy of past sentences and must be weighed against the state’s reliance on the old rule for over twenty years and the administrative burden of implementing the new rule retroactively.  We therefore reverse the rulings of the court of appeals in these two cases and remand.

February 27, 2009 at 05:00 PM | Permalink


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Utterly specious reasoning: "a defendant sentenced in violation of Blakely cannot complain that his entire conviction is tainted, only that the fact-finding underlying an aggravating sentencing factor might not have been accurate — a complaint that, given the heightened clear and convincing standard applied by judges before Blakely, does not raise serious questions about the accuracy of the sentence." Slip op. at 28. This "entire conviction"/"aggravating sentencing factor" false distinction was rejected by Apprendi. Where, e.g., a fact found by a preponderance is the but-for cause of the addition of 30 years on top of a 20-year sentence, how is that "entire conviction" -- or, at least, the most important part of the "conviction" -- not "tainted"?

Posted by: def lawyer | Feb 27, 2009 5:34:05 PM

What is an "aggravating sentencing factor?" The Alaska Court needs to read Justice Scalia's concurring opinion in Ring v Arizona, in which he says, "today's decision has nothing to do with jury sentencing." Or, Justice Thomas' concurrence in Apprendi, which starts out by correctly stating that the issue is "simply put, what is a crime?"

Apprendi is about crimes, not sentencing. We no longer have aggravated sentences, only aggravated crimes.

bruce cunningham

Posted by: bruce cunningham | Feb 27, 2009 6:42:22 PM

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