Sentencing Law and Policy

"Beyond Bars: A Path Forward from 50 Years of Mass Incarceration in the United States"

The title of this post is the title of this new (open access) book editted by Kristen Budd, David Lane, Glenn Muschert and Jason Smith. Here is how it is described:  

The year 2023 marks 50 years of mass incarceration in the United States.  This timely volume highlights and addresses pressing social problems associated with the U.S.’s heavy reliance on mass imprisonment.  In an atmosphere of charged political debate, including “tough on crime” rhetoric, the editors bring together scholars and experts in the criminal justice field to provide the most up-to-date science on mass incarceration and its ramifications on justice-impacted people and our communities.

This book offers practical solutions for advocates, policy and lawmakers, and the wider public for addressing mass incarceration and its effects to create a more just, fair and safer society.

The Table of Contents lists 10 substantive chapters in this text, and here are just a few of the many chapters that may be of particular interest to sentencing fans:

Mass incarceration’s lifetime guarantee by Ashley Nellis

Mass incarceration and the collateral problems of parole by Kimberly D. Richman

The end of mass incarceration: opportunities for reform by Francis T. Cullen, Justin T. Pickett, and Cheryl Lero Jonson

The final chapter of this book, authored by Cullen et al., develops the thesis that the "era of mass incarceration has ended," and it concludes with this paragraph:

In closing, historical turning points are not always apparent to those in their midst but become evident only in retrospect some years later.  Thus, we trust we have been convincing in showing that mass incarceration has ended — both in terms of the growth of prison populations and the punitive logic that fueled the movement.  This good news, however, will be squandered if a collateral movement to transform American corrections lays dormant.  However, a shortcut may be possible.  It is insufficient to identify past mistakes; future choices must occur.  The opportunity for change is palpable.  Are we up to creating a new era of reform — a humanitarian revolution in corrections?

Interesting and consequential Florida Supreme Court decision on retroactivity of Hurst

As this Death Penalty Information Center posting details, the Florida Supreme Court this past week reiterated that it would not apply retroactively its rulings requiring unanimous jury verdicts for death sentences to cases made final by June 2002 when SCOTUS decided Ring v. Arizona. The Florida court's per curiam opinion in Hitchcock v. Florida, No. SC17-445 (Fla. Aug. 10, 2017) (available here), mostly just restates a prior retroactivity ruling, but concurring and dissenting opinions make for interesting reads on retroactivity doctrines and policies.

As the DPIC posting notes, "Hitchcock's case was closely watched because the Florida courts had frozen the briefing schedules for 77 similarly situated death-row prisoners who also were arguing that Hurst should be enforced in their cases." I suspect most, if not all, of these prisoners will not be seeking certiorari to the US Supreme Court, but I would be surprised if SCOTUS takes up any of their cases.

"From Jones to Jones: Fifteen Years of Incoherence in the Constitutional Law of Sentencing Factfinding"

The title of this post is the title of this notable new paper now on SSRN authored by Benjamin Priester. Here is the abstract:

With tens of thousands of persons sentenced every year in the United States, the contemporary American criminal justice system places undeniable importance upon the constitutional constraints governing the scope of the permissible and impermissible exercises of factfinding authority by sentencing judges in the course of determining the specific punishment to be imposed upon an individual convicted of a criminal offense.  Yet for the past fifteen years the United States Supreme Court has failed to provide doctrinal stability and consistency to this crucial area of constitutional law.

Even the most recent decisions, such as Alleyne v. United States (2013) regarding mandatory minimum sentencing provisions, have generated only more unpredictability in the doctrine and more disagreements among the justices’ viewpoints.  The path to an enduring doctrinal solution is not readily evident, and the Court’s unwillingness to reach consensus leaves the constitutional law of sentencing factfinding trapped in an ongoing cycle of unpredictability and doctrinal incoherence.

Are 12 Alleyne GVRs (including one from Kansas) a sign of big Sixth Amendment things to come?

Busy on various fronts, I have not yet had time to think through all the impacts that the Supreme Court's Sixth Amendment work last week in Alleyne might produce.  But today, via this SCOTUS order list, I see that there are 12 cases in which certiorari is granted and the judgment vacated, so the case can be remanded "for further consideration in light of Alleyne v. United States, 570 U.S. ___ (2013)."

Some GVRs after a big SCOTUS sentencing ruling are not always a big deal, as there can often be a number of cases in the cert pipeline that are just like the case in which the Supreme Court announced its new doctrine. But, in addition to being intrigued that there were at least a dozen Alleyne-type claims already in the SCOTUS pipeline that now led to these GVRs, I find especially notable that one comes from Kansas (Astorga v. Kansas) and thus involves a remanded "to the Supreme Court of Kansas for further consideration in light of Alleyne v. United States, 570 U.S. ___ (2013)."

My sense has been that Alleyne could and would not end up being nearly as disruptive to any state sentencing systems as Blakely had been. But this Kansas remand, as well my own sense that at least a few states relied on Harris for a while to keep some parts of their sentencing systems in tact, prompts the question in the title of this post.

First-cut reactions as to what is big, and not so big, about Alleyne's reversal of Harris

I will likely have a lot to say about the specifics of the Sixth Amendment discussions in all the Alleyne opinions later today once I get more time to review the decision more closely.  But I have three quick reactions about the ruling and its potential impact I wanted to share right away.  I will give this trio of reactions these labels: big, not-so-big, could-be-huge.

The Big of Alleyne: though serious talk of a "Booker" fix to the advisory guidelines sentencing system has not had much juice for a very long time, the Alleyne ruling serves as a final nail in the "mandatory topless guidelines" idea that made the rounds as a potential legislative response to Blakely and Booker in the federal system.  That "fix," which would have required judges to do fact-finding to raise guideline minimums without impacting maximums, depended on the validity and vitality of Harris.  And Harris is now a goner.

The No-So-Big of Alleyne: though persons imprisoned now based on mandatory minimums triggered by judicial fact-finding might hope Alleyne is a new jurisprudential key to freedom, a host of doctrices may ensure very few new imprisoned persons get much benefit from Alleyne.  For starters, the retroactivity doctrines of Teague and AEDPA may make it hard for those long ago sentenced to get their Alleyne claims even heard in court.  Moreover, the harmeless error doctrines of Cotton and Recuenco may make it easy now for judges to say, even in those cases in which the issue can still be raised, that any Sixth Amendment error was harmless.

The Could-Be-Huge of Alleyne: there are any number of shaky exceptions and carve-outs to the full application of Apprendi doctrines, ranging from the prior-conviction exception of Almendarez-Torres to all sorts of efforts by lower courts to refuse to acknowledge Apprendi's potential impact on all sorts of judicial fact-finding that impacts punishment realities.  If Alleyne (which comes just a year after Southern Union) portends a Court now willing and eager to keep taking up Apprendi issues and extending the reach of the Sixth Amendment, we all might be in for quite an interesting Sixth Amendment ride over the next few Term.  (And, for the really creative, perhaps Alleyne could be combined with Peugh to perhaps even generate procedural protections even for federal defendants sentencing in a post-Booker world.)

Prior related post on Alleyne ruling:

• Per Justice Thomas in 5-4 SCOTUS split, Alleyne extends Sixth Amendment to findings triggering mandatory minimums

Interesting new data on operation of death penalty in Connecticut

Thanks to this New York Times editorial by Lincoln Caplan, which carries the provocative headlined "The Random Horror of the Death Penalty," I saw this fascinating new study by Professor John Donohue concerning the operation of the death penalty in the Nutmeg State.   First, from the study: it is titled "Capital Punishment in Connecticut, 1973-2007: A Comprehensive Evaluation from 4686 Murders to One Execution," and here is the start of the abstract:

This study explores and evaluates the application of the death penalty in Connecticut from 1973 until 2007, a period during which 4686 murders were committed in the state. The objective is to assess whether the system operates lawfully and reasonably or is marred by arbitrariness, caprice, or discrimination.  My empirical approach has three components. First, I provide background information on the overall numbers of murders, death sentences, and executions in Connecticut.  The extreme infrequency with which the death penalty is administered in Connecticut raises a serious question as to whether the state’s death penalty regime is serving any legitimate social purpose.

Specifically, of the 4686 murders committed during the sample period, 205 are death-eligible cases that resulted in a homicide conviction, and 138 of these were charged with a capital felony.  Of the 92 convicted of a capital felony, 29 then went to a death penalty sentencing hearing, resulting in 9 sustained death sentences, and one execution (in 2005). A comprehensive assessment of this process of winnowing reveals a troubling picture. Overall, the state’s record of handling death-eligible cases represents a chaotic and unsound criminal justice policy that serves neither deterrence nor retribution.

Second, from the start and end of the NYT editorial:

The Supreme Court has not banned capital punishment, as it should, but it has long held that the death penalty is unconstitutional if randomly imposed on a handful of people.  An important new study based on capital cases in Connecticut provides powerful evidence that death sentences are haphazardly meted out, with virtually no connection to the heinousness of the crime....

Professor Donohue designed an “egregiousness” ratings system to compare all 205 cases. It considered four factors: victim suffering (like duration of pain); victim characteristics (like age, vulnerability); defendant’s culpability (motive, intoxication or premeditation); and the number of victims. He enlisted students from two law schools to rate each case (based on fact summaries without revealing the case’s outcome or the race of the defendant or victim) on a scale from 1 to 3 (most egregious) for each of the four factors. The raters also gave each case an overall subjective assessment of egregiousness, from 1 (low) to 5 (high), to ensure that more general reactions could be captured.

The egregiousness scores for those charged with capital murder and those who were not were virtually identical; the nature of the crime bore almost no relationship to how the case came out. Among the 29 who had a death penalty hearing, there is no clear difference in the level of egregiousness for the 17 who got life without parole and the 12 sentenced to death (three eventually had their sentences vacated for various reasons). Among the 32 most awful cases on the four-factor egregiousness scale, only one resulted in a death sentence. Rather than punish the worst criminals, the Connecticut system, Professor Donohue found, operates with “arbitrariness and discrimination.” The racial effect is very evident (minority defendants with white victims were far more likely to be sentenced to death than others), as is geographic disparity. In the city of Waterbury, a death-eligible killer was at least seven times as likely to be sentenced to death as in the rest of the state.

In 1972, the Supreme Court in Furman v. Georgia struck down state death-penalty laws that lacked guidelines on how the penalty should be applied. It found that with only 15 percent of death-eligible murder convictions in Georgia leading to a death sentence, imposition of the penalty was “freakishly” rare — and therefore arbitrary and unconstitutional. The rate in the Donohue study is far more extreme at 4.4 percent.

The court also said in Furman that a death-penalty system must have a “meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.” Clearly, Connecticut’s system fails this requirement. Because it’s a small state, Professor Donohue was able to conduct a comprehensive study of every capital murder case with a conviction. But Connecticut’s lessons also apply to bigger states, like California, Texas and Ohio, where prosecutors even in neighboring counties use drastically different factors to impose the death penalty.

In 2011, the number of new death sentences imposed in the United States fell by 25 percent to 78, the lowest number since capital punishment was reinstated in 1976. This “freakishly” rare application — among the thousands of murder cases a year — is strong evidence that every state system is arbitrary and capricious. The death penalty in Connecticut is clearly unconstitutional, barbaric and should be abolished, as it should be everywhere.

I may have a lot more to say about the implications of Professor Donohue's research once I have a chance to reads his entire study.  But I will begin by suggesting that I do not think Furman can or should be read to hold or even imply that county-by-county differences in the application of the death penalty within a state serve to make the operation of the death penalty unconstitutional.  A state's policymakers may surely decide that such geographic differences make for bad policy and should be addressed legislatively; but I do not think the judiciary can or should hold that such differences alone make the death penalty unconstitutional.

"Of Rebels, Rogues and Roustabouts: The Jury's Second Coming"

The title of this post is the title of this new piece from Professor Jenny Carroll now appearing on SSRN.  As its abstract reveals, this paper would be a timely read for anyone eager to think about the labors of juries during this Labor Day weekend:

This article examines the role of the jury in a post-Apprendi justice system.  Apprendi and its progeny recognize the vital role the jury plays in establishing the legitimacy of criminal convictions and sentences.  I contend that the Apprendi line confirms the jury’s responsibility, as representatives of the community, to give the law meaning in their determination of criminal culpability.  In this, Apprendi seeks to restore the original role of the jury as the bridge between the law itself and the community the law seeks to regulate. 

This restoration is incomplete, and the jury’s true significance cannot be realized, without a recognition of the jury’s original right to judge law as well as fact.  Only through the revitalization of this power to nullify can the jury assume its intended role and provide community sanction to the designation of criminal culpability.  I conclude that democracy, and indeed the underlying goals of the criminal justice system, are best served when criminal processes allow forums for dissenting perspectives and juries are allowed to assess both the legal and factual bases of guilt.

Interesting split Sixth Circuit ruling on Blakely-based habeas action from Ohio

Hard-core Blakely fans and/or hard-core habeas fans will want to be sure to check out today's work by a split Sixth Circuit today in Cvijetinovic v. Eberlin, No. 08-3629 (6th Cir. Aug. 23, 2010) (available here). Here is how the majority opinion in Cvijetinovic gets started:

Warden Michelle Eberlin appeals the district court’s order conditionally granting Ohio prisoner Alexsandar Cvijetinovic’s petition for a writ of habeas corpus.  In the petition, Cvijetinovic claimed that his presumptive sentence was enhanced on the basis of judge-found facts, a practice forbidden by the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004).  Though it determined that Cvijetinovic’s Blakely claim was procedurally defaulted, the district court granted relief, holding that he had established cause and prejudice.  The district court’s conclusion with respect to cause was premised on the notion that, at the time of his default, the legal basis for Cvijetinovic’s claim was not reasonably available.  However, the principle at the heart of Blakely had already been articulated in Apprendi v. New Jersey, 530 U.S. 466 (2000), which spawned myriad Blakely-type claims in the months preceding Cvijetinovic’s appeal.  We therefore reverse.

Here is how the dissent by Judge Keith in Cvijetinovic gets started:

The majority’s interpretation of Engle v. Isaac, 456 U.S. 107 (1982), in line with Eleventh Circuit precedent, would require defense counsel to anticipate and articulate constitutional arguments that are contrary to controlling Supreme Court precedent.  See, e.g., Pitts v. Cook, 923 F.2d 1568, 1571 (11th Cir. 1991).  This reading is not only unfounded but also poses worrying policy concerns.  Because counsel’s failure to articulate a Blakely claim prior to Blakely, itself, constitutes sufficient cause to excuse procedural default, I respectfully dissent.

Notable and insightful Blakely habeas ruling from the Sixth Circuit

The Sixth Circuit has an effective little panel decision today in a habeas case concerning the application of Blakely to Ohio sentencing law.  The ruling in Arias v. Hudson, No. 08-4513 (6th Cir. Dec. 16, 2009)  (available here), has many notable aspects, and here is how the opinion starts and concludes:

The warden appeals an order conditionally granting habeas corpus to Manuel Arias on the ground that his sentence violates Blakely v. Washington, 542 U.S. 296 (2004).  Arias’s sentence does not violate Blakely, however, because the judicial fact-finding at issue merely increased his minimum sentence.  We accordingly reverse.

The continuing vitality of McMillan and Harris may be put to the test in a pending case at the Supreme Court. See United States v. O’Brien, ___ U.S. ____, 130 S. Ct. 49 (2009) (granting certiorari in a case involving fact-finding that increased a defendant’s minimum sentence). The case could be decided by overruling McMillan and Harris, but it also could be decided on statutory grounds, as the First Circuit decided the case below.  See United States v. O’Brien, 542 F.3d 921, 924 (1st Cir. 2008). Regardless of what happens in O’Brien, however, this Sixth Amendment reality remains: At the time the judge imposed Arias’s sentence, the Supreme Court treated judicial fact-finding differently depending on whether it affected the minimum sentence faced by a defendant or the maximum sentence for which the defendant was eligible.  Because the courts have not treated Blakely or United States v. Booker, 543 U.S. 220 (2005), as changes in law that should be applied retroactively to cases whose direct appeal concluded before their announcement, we see little prospect that the courts will apply any such (potential) change in the law retroactively to Arias. Cf., e.g., Duncan v. United States, 552 F.3d 442, 447 (6th Cir. 2009) (holding that Booker does not apply retroactively to cases pending at the time of Blakely).

In the last analysis: McMillan and Harris were good law at the time of Arias’s sentencing, and they remain so today; the two decisions allow judicial fact-finding that increases a defendant’s minimum sentence; Arias waived his right to have the jury make any findings of fact that might increase his maximum sentence; and an increase in the minimum term of this sentence is governed by Harris. All of this leaves Arias with no cognizable basis for challenging his sentence.

I am very pleased to see this panel opinion give voice to the possibility that the vitality of McMillan and Harris may be at issue int he upcoming O’Brien case.  This ruling in Arias also provides a useful and important reminder that defendants whose case may turn in some way on the vitality of McMillan and Harris ought to be extra sure to be preserving (and prolonging?) this issue in their cases.

(On an somewhat unrelated front, the Sixth Circuit today also released this order in an immigration case which includes a dissent that has, among other flourishes, these two amusing footnotes: "Seriously, a Turkish prison" and "With a tip of the hat to M. Colbert of The Colbert Report".)

Should the ALI and other academics actively urge SCOTUS to reverse Harris in O'Brien?

I keep thinking about the suggestion by Professor Kevin Reitz, noted in this post, that the Harris mandatory minimum limit on the Apprendi Sixth Amendment rule might be subject to reversal in O'Brien.  And the more I think, the more I get drawn to the idea that everyone who views Harris as a serious impediment to sound modern sentencing reforms ought to be actively urging Harris to be overruled in O'Brien.  I say this because I genuinely believe that, if lots of thoughtful folks make a strong case that Harris is now harmful in light of the subsequent Blakely and Booker jurisprudence, few Justices may be eager to defend and uphold Harris. 

Let me unpack this instinct by first highlighting that Justice Stevens and Justice Thomas seem likely and eager to embrace calls to overrule Harris.  Both Justices have expressed interest in getting rid of undue limits on the Apprendi doctrine and neither seems too moved by stare decisis concerns in this setting.  The fact that both Justices Stevens and Thomas may be deeply interested in getting rid of Harris seems quite significant (and Justice Ginsburg has almost always voted with Justice Stevens in this line of cases).

Also significant, especially for the vote of Justice Breyer (and maybe also for Justice Kennedy), is that the subsequent Blakely and Booker rulings largely brought down what Harris sought to preserve: binding guideline systems based on judicial fact-finding.  After Blakely and Booker, the virtues of Harris are harder to see, while the vices remain on display.

In addition, the Recuenco decision declares Apprendi-Blakely errors subject to harmless error analysis.  Recuenco can and should greatly reduce the fear that overruling Harris would have all sorts of negative consequences: in the vast majority of old cases, any "O'Brien error" in the application of a mandatory minimum sentence would likely be found to be harmless.

Finally, I think all the new Justices could be moved by arguments that preserving Harris is bad for modern sentencing reform as long as Apprendi and Blakely and Booker all remain good law.  All the new Justices likely have a sense of the ugliness of modern Sixth Amendment jurisprudence and none have played a direct role in creating it.  Consequently, they might readily be drawn to suggestions that the Court would be helpful and respectful to states and officials involved in sentencing reforms if they now did away with the Harris exception to Apprendi.

Ironically, these thoughts all take me back to Professor Kevin Reitz, who is the reporter on the ALI's on-going revision of the sentencing provisions of the Model Penal Code.  If he could get the ALI and others to make the case that no sentencing code can be truly model with Harris still on the books, there may be even more than five votes to overrule Harris in O'Brien. 

Some related recent posts:

• Might the Harris limit on Apprendi be at risk with O'Brien cert grant?
• Might Apprendi be at risk with O'Brien cert grant?

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.

A (back-handed?) rejection of Booker retroactivity from the Sixth Circuit

In addition to the Sixth Circuit's affirmance of a long within-guideline child porn sentence (discussed here), the court yesterday also rejected a claim that Booker should be applied retroactively in Duncan v. US, No. 06-5021 (6th Cir. Jan. 9, 2009) (available here).  A helpful reader sent me these astute observations about the Duncan opinion:

The panel affirmed a sentence against a Booker retroactivity challenge, but the short opinion was interesting since it almost read like a cert petition in favor of Booker retroactivity. (The specific issue was Booker retroactivity back to Blakely, as opposed to Apprendi.) The court made a lot of interesting arguments in favor of retroactivity..., but ultimately held that it was constrained by circuit precedent.

Hawaii still dealing with Apprendi fix and fall-out

This local article reveals how long it can take for certain matters to make their way from the Supreme Court in DC all the way out to Hawaii:

State courts can resentence convicted felons to extended prison terms under a new law enacted just last year for cases dating to the year 2000, according to a state appeals court ruling issued last week.  The ruling by the state Intermediate Court of Appeals upholds the constitutionality of Act 1, which brings Hawaii sentencing statutes in line with recent U.S. Supreme Court orders and rulings.  The effective date of the law is retroactive to 2000, when the high court issued a ruling in a New Jersey case.

The new law requires juries to determine whether a convicted felon is eligible for a prison term longer than what is normally allowed, based on the danger he poses to the public.  Previously, judges made that determination....

"We're happy with the ICA ruling, and it is our hope that the Supreme Court will see the issue similarly," said state Attorney General Mark Bennett. Oral arguments are scheduled for today. Public Defender Jack Tonaki said there already is a case that raises the same or similar issues pending before the Hawaii Supreme Court.

A vehicle for addressing Booker retroactivity (and Teague)

I received today a copy of a cert petition flagging another set of interesting sentencing-related issues for the Supreme Court.  The petition (which can be downloaded below) was filed in Soto v. US, and raises questions about the applicability to Teague and the retroactivity of Booker.  Here are the questions presented from the petition:

1. Does the retroactivity test applied in habeas corpus challenges to state judgments of conviction, as set forth in Teague v. Lane, 489 U.S. 288 (1989), limit the availability of relief on a motion under 28 U.S.C. § 2255 asserting that a federal sentence must be corrected due to error under United States v. Booker, 543 U.S. 220 (2005)?

2. If Teague is applicable, did Booker announce a "watershed rule" of criminal procedure in holding that sentences imposed under the mandatory United States Sentencing Guidelines are constitutionally infirm unless every fact essential to sentence was proved beyond a reasonable doubt?

Download soto_petition_with_appendix.pdf

Some related SCOTUS posts:

• A big SCOTUS sentencing Term in the works?
• Amazingly interesting case for Fed Courts law geeks (like me)
• When will SCOTUS address the constitutionality of the death penalty for child rape?
• Serious SCOTUS sentencing fun soon to begin
• Apprendi / Blakely Retroactivity index

Remarkable Apprendi ineffectiveness ruling from the Sixth Circuit

After seeing this ruling earlier today, I wanted to read it closely to be sure it was as big a deal as it seems.  And, upon further review, I am sure that the Sixth Circuit's work today in Nichols v. US, No. 05-6452 (6th Cir. Aug. 16, 2007) (available here), is huge and perhaps gets intriguingly close to giving Booker retroactive potential for some federal defendants.  Technically, Nichols concerns an ineffective assistance claim brought in a 2255 petition.  But federal practitioners will understand from these excerpts what Nichols could mean:

Petitioner-Appellant Thomas Albert Nichols (“Nichols”) appeals from the district court’s judgment denying his motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Nichols argues that his counsel was constitutionally ineffective for failing to challenge enhancements to his Guidelines range.  Nichols argues that, based on Apprendi v. New Jersey, 530 U.S. 466 (2000), his counsel should have raised a Sixth Amendment challenge to the sentencing enhancements, even though Nichols was sentenced in 2002, more than two years before the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005). Because Apprendi cast the constitutionality of the Federal Sentencing Guidelines into considerable doubt, and because the enhancements to Nichols’s Guidelines range directly presented circumstances that were called into question by Apprendi, we conclude that Nichols’s counsel was constitutionally ineffective for failing to preserve a Sixth Amendment challenge to his sentence, and we therefore REVERSE the judgment of the district court, VACATE Nichols’s sentence, and REMAND the case for resentencing....

We recognize that, under our decision today, the performance of many attorneys who represented criminal defendants after Apprendi but before Blakely and Booker will be deemed constitutionally deficient. The question before us, however, is not what some or most attorneys actually did, but whether the performance of Nichols’s counsel “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. Although we recognize that common practices may provide evidence of the objective standard by which we should measure the performance of individual attorneys, common practices can never be determinative lest we freeze our expectations of counsel at one moment in time, never to improve or change in response to developments in, for example, education, technology, or the law itself.  In this case, we conclude that the performance of Nichols’s counsel was constitutionally deficient for failing to take into account and respond to the significant changes in the law effected by Apprendi.

For a range of practical and procedural reasons too complicated to explain briefly, the actual impact of Nichols may not be that huge for the hundreds of thousands of defendants sentenced between Apprendi and Booker.  Nevertheless, the import of Nichols is still huge (and likely will lead to further appeals from the government).

When will SCOTUS address Booker retroactivity?

Amidst lots of thoughtful sentencing work by Sixth Circuit judges recently (examples here and here), Judge Martin's dissent in Valentine v. US, No. 04-2116 (6th Cir. May 14, 2007) (available here) stands out as an extraordinary tour de force making the case for Booker retroactivity. 

As highlighted before, Judge Martin effectively documents that the Teague rule for retroactivity is driven in part by federalism and comity concerns not fully applicable to federal criminal cases.  And this closing flourish from Judge Martin's opinion reminds me why the the Apprendi-Blakely five (or Cunningham six) might possibly be moved by arguments for Booker retroactivity:

[T]he Apprendi line of cases means much more than how long the government can send a defendant to jail — it speaks volumes about how we, as a democratic society, are able to follow the strictures that represent the very backbone of our legal and Constitutional system.  Apprendi and its offspring — Blakely and Booker — recognize a critical, constitutionally mandated check on the sentencing process, through the grounding of sentencing determinations in facts that have been proved to the jury beyond a reasonable doubt.  Our modern federal judiciary has been reluctant to recognize this Sixth Amendment limitation, probably due to the primacy of the mandatory sentencing guidelines that has been ingrained in our approach to sentencing for seventeen years.  Although this is an innate and natural way for anyone to think, federal judges included, our personal experience over seventeen years clearly must take a backseat to the fundamental guarantees of the centuries-old Bill of Rights, with the benefit of the Supreme Court's reinvigoration of these values through Apprendi and its progeny (i.e. Booker).

For various reasons, the Valentine case appears to present a particularly good vehicle for the Supreme Court to consider Booker retroactivity issues.  I hope the defendants in Valentine will seek cert, and I hope the Justices and their clerks recognize that these issues merit a place on the court's ever-shrinking docket.

Thoughtful work from the Sixth Circuit on Booker retroactivity

Continuing its tradition of thoughtful (and often divided) post-Booker work, the Sixth Circuit today in Valentine v. US, No. 04-2116 (6th Cir. May 14, 2007) (available here), has an extended discussion of Booker retroactivity issues.  Valentine holds, in a 2-1 opinion, that Booker is not retroactive. 

Judge Martin dissents in a terrifically interesting opinion which, among other insights, highlights that the Teague rule for retroactivity is driven in part by federalism and comity concerns not fully applicable to federal criminal cases.  Here is one of many thoughtful parts of Judge Martin's dissent:

These quotations clearly reveal that the standard new rule inquiry and its reference to opinions of reasonable jurists is largely based on concerns with federalism and comity, and demonstrates deference to reasonable state court interpretations of the law.  Even where the “reasonable jurists” to whom we look for guidance are federal judges, their opinions can serve as a proxy for whether a similar state court decision was reasonable.  So long as state courts are applying Supreme Court case law in good faith, there is diminished justification for burdening their quasi-sovereign judicial machinery with the retroactive application of new rules in cases that have become final.

In a section 2255 case, however, where comity and federalism are irrelevant, there is much less need to defer to the divergent views of federal judges who, in hindsight, did not correctly apply existing precedent to a new case.  We are, after all, members of inferior courts established by same sovereign (unlike state court judges), and if the Supreme Court says we were wrong, we should take our medicine and gladly apply the correct rule retroactively, rather than clinging to vacated misapplications of the law to prove that a Supreme Court rule is “new” (which conveniently allows us to convince ourselves that we could not have been wrong in the first place).

DC Circuit rejects Booker retroactivity (and suggests Blakely might be watershed?)

The DC Circuit today in In Re: Fashina, 06-3002 (DC Cir. May 11, 2007) (available here) rejects a Booker retroactivity claim (after working through some complicated AEDPA issues).  Since no court ever decided that Booker was retroactive, this is not big news.  However, Fashina has an extended discussion of whether Booker might qualify as a "watershed rule" exception under Teague which perhaps hints that the reasonable doubt part of Blakely might be fully retroactive.  Here is the passage that especially caught my attention:

[W]e share [the defendant's] premise about the foundational role of the reasonable doubt standard of proof in criminal cases. [Long quote from In re Winship, 397 U.S. 358, 363 (1970)].... We also note that Winship was made retroactive, albeit prior to the Court's setting the current standard for retroactivity in Teague.  See Ivan V. v. City of New York, 407 U.S. 203, 204-05 (1972).

Important as the reasonable doubt standard no doubt is, our task is to determine whether Booker works so "sweeping and fundamental" a change in its application as to constitute a watershed rule.

Big retroactivity SCOTUS development?!?

Minutes after I finish this playful SCOTUS post, I discover this thoughtful post at SCOTUSblog entitled "Court to study scope of Teague retroactivity."  The report by Lyle Denniston details a notable retroactivity briefing request from the Court.  Here are the basics from Lyle:

The Supreme Court indicated on Tuesday that at least some Justices are interested in claims by state prisoners that they should be able to get more retroactive benefit out of U.S. Supreme Court decisions that lay down new rules of criminal procedure. The Court's electronic docket shows an order asking the state of Minnesota to discuss that question.

Here is how the Court phrased its inquiry in the pending case of Danforth v. Minnesota (06-8273): "Are state supreme courts required to use the standard announced in Teague v. Lane, 489 U.S. 288 (1989), to determine whether United States Supreme Court decisions apply retroactively to state-court criminal cases, or may a state court apply state-law or state-constitution-based retroactivity tests that afford application of Supreme Court decisions to a broader class of criminal defendants than the class defined by Teague?" (emphasis added).

In other words, the Court seems prepared to explore (only two decades after Teague) response whether state courts are bound to apply Teague in state-court collateral attacks.   

As Lyle details, the Danforth case is focused on a Crawford issue.  But, this obviously could become a significant issue in efforts to apply Blakely (or even Apprendi) retroactivity.  Indeed, a thoughtful reader e-mail this reaction to this development: "If they take up a Blakely retroactivity case too, then that will pretty much nail down, one way or the other, the state of Blakely retroactivity."

Can Bockting be read to support Apprendi and/or Blakely retroactivity?

As suggested here, and by commentors, it is not easy for sentencing fans to reader Bockting's discussion of Crawford's non-retroactivity under Teague and wonder what this all might mean for Apprendi and/or Blakely.  My quick take is that I see nothing in Bockting that would seem to undermine the arguments that Blakely may at least be retroactive to Apprendi and that the burden-of-proof aspect of Apprendi might be "watershed" and thus fully retroactive.  In fact, for reasons developed in some old posts linked below, I one might even mine passages in Bockting to try to enhance the argument for at least some measure of Apprendi and/or Blakely retroactivity.

Some related posts:

• Big Blakely retroactivity doings from Alaska
• Colorado Supreme Court says Blakely not retroactive
• Distinguishing finality interests between convictions and sentences
• What wrong with equitable Booker retroactivity in the Ninth Circuit?
• The human face of retroactivity
• Seeking retroactive Blakely "Justice for All"
• More academic arguments for Blakely retroactivity

Crawford not retroactive

SCOTUSblog is reporting here that the "Supreme Court ruled on Wednesday that its major ruling on the Confrontation Clause in Crawford v. Washington is not to be applied retroactively, to cases that were final before that ruling came down."  I will comment on the opinion, and on what it might mean for Blakely retroactivity, later today.  Commentors should feel free to get started ASAP.

UPDATE: Justice Sam Alito authored the Court's unanimous opinion in Whorton v. Bockting, and the Court's work can now be accessed at this link.   Notably, there are no separate opinions, and so chack one up for the consensus-interested Chief Justices.

I am sure folks eager to seek Crawford wreck havoc with old convictions are disappointed with this outcome.  But, with my sentencing blinders on, I am pleased to see the Court not use up too much of its limited political/legal/reputational capital by sending lots and lots of not-too-ugly old trials into a potential tailspin based on a confusing new rule about the application of the Confontation Clause.  (Of course, I say this hoping the Court is prepared to use its political/legal/reputational capital by sending a few ugly old sentences into a potential tailspin.)

Final(?) follow-up on Burton

Thanks to How Appealing, at this link you can read Brent Kendall's thoughtful report in the Daily Journal of California on the Supreme Court's somewhat disappointing Burton ruling yesterday.  The piece is entitled "Justices Reject 'Blakely' Follow-Up," and here is a taste:

A potentially important U.S. Supreme Court case on criminal sentencing fizzled out Tuesday as the justices announced that legal technicalities prevented them from deciding whether a landmark 2004 decision strengthening a defendant's jury-trial rights should apply retroactively....

Given the Supreme Court's interest in answering the Blakely retroactivity question, the justices could grant review in another case soon - if a good case is available to them.  Stanford University law professor Jeffrey L. Fisher, who argued and won Blakely and argued Burton's retroactivity bid, said he and others were "shaking the trees" in search of a case that raised the same issue. The court could line up another prospect soon. "It looks like the court may well have something on its docket to take a shot at this," Fisher said.

Recent related posts:

• Duck and cover from SCOTUS
• Shouldn't SCOTUS have just DIG'd Burton?

Shouldn't SCOTUS have just DIG'd Burton?

Here is a question for SCOTUS gurus: shouldn't the Supreme Court in Burton have just dismissed the petition as improvidently granted (a DIG), rather than turn the case into a ruling on federal AEDPA law?

The Court's per curiam ruling in Burton v. Stewart can be found at this link, and the first two sentences of the opinion tell the heart of the story:

We granted certiorari in this case to determine whether our decision in Blakely v. Washington, 542 U.S. 296 (2004), announced a new rule and, if so, whether it applies retroactively on collateral review.  We do not answer these questions, however, because petitioner — a state prisoner seeking postconviction relief from the federal courts — failed to comply with the gatekeeping requirements of 28 U.S.C. §2244(b).

Because Burton was supposed to be about Blakely retroactivity, the parties and amici focused on this complicated and very consequential issue.  (The Burton briefs can be found here.)  But the per curiam opinion, while avoiding Blakely retroactivity issues completely, turned into a fairly extensive exegesis of how to apply provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

The parties in Burton barely discussed AEDPA in their briefs, and the Solicitor General's amicus brief did not even mention this issue.  Though I am not sure if Burton breaks any important AEDPA ground, wouldn't a truly reserved Court have just DIG'd this case rather than opine on a set of issues that were not fully briefed?   

Because the AEDPA issue involved a jurisdictional matter, perhaps the Court considered a DIG inappropriate.  But I still think a DIG followed by a grant in another Blakely retroactivity case would have been a much better way to deal with these matters after so many folks, upon the Court's decision to grant cert, spent so much time and energy on the important (and now still unresolved) Blakely retroactivity issue.

UPDATE:  I'm convinced by commentors to this post and Howard that the jurisdiction issue and other related considerations justified the Court's decision not to simply DIG Burton.  Left open, however, is whether, when and how SCOTUS will finally get to the issue of Apprendi and Blakely and Booker retroactivity. 

Relatedly, I think the AP's headline reporting on the Burton ruling is telling: "High Court Rules Against Wash. State Rapist Who Wanted Sentence Reduced."  I guess that headline is accurate, but it certainly gives the case a different flavor than one might expect.

ANOTHER UPDATE:  In you really dig DIGs, be sure to check out a recent article just brought to my attention:  Michael E. Solimine & Rafael Gely, The Supreme Court and the DIG: An Empirical and Institutional Analysis, 2005 Wisconsin Law Review 1421.

Duck and cover from SCOTUS

As detailed here by Lyle Denniston, the Supreme Court today issued two opinions in criminal cases that managed to avoid the merits of seemingly important questions.  Here is Lyle's early report:

[T]he Court declined to rule on the question of whether the sentencing decision in Blakely v. Washington in 2004 is to be applied retroactively in federal habeas cases.  The Court found in Burton v. Stewart (05-9222) that the state prisoner in the case had failed to comply with the "gatekeeping" requirements of federal habeas law, so the District Court had no jurisdiction in the case. The Court issued the decision in an unsigned opinion; there were no dissents.

In a ... final ruling of the day, in U.S. v. Resendiz-Ponce (05-998), the Court declined to decide the issue it had agreed to hear -- that is, whether failure to include in a criminal charge an element of the offense can ever be excused as "harmless error."  The Court found that the indictment in this case was not defective, so it need not reach the granted question.  Justice John Paul Stevens wrote the opinion for an 8-1 Court. Justice Scalia dissented.

Updates with substantive comments will follow once I have a chance to consume these efforts.  But first I cannot help but scratch my head about --- and critically assail --- how poorly the cert. pool seems to be operating in the Roberts era.  Since Blakely was decided in 2004, many dozens (perhaps many hundreds) of state defendants have sought cert on the decision's retroactivity.  With plenty of different possible vehicles, the Justices managed to pick a case (Burton) one with a procedural headache that has now further delayed the resolution of an important issue.

More Kerr on Carrington and mandate recall discretion

I am very pleased to see that Orin Kerr here has jumped back into the debate over the Ninth Circuit panel's Carrington ruling, and his long post sharpens the issue effectively while also spotlighting key aspects of the Supreme Court's discussion of mandate recalls in Calderon v. Thompson, 523 U.S. 538 (1998) (available here).   Orin views Carrington "like a replay of Thompson," but I think Carrington is very different for some reasons I have already discussed here.

To begin, Thompson says "courts of appeals are recognized to have an inherent power to recall their mandates, subject to review for an abuse of discretion."  Later on, after a review of the bizarre procedural history of the case, the ruling stresses that "Thompson's is not an ordinary case ... because he seeks relief from a criminal judgment entered in state court."  The ruling heavily stresses both federalism and habeas concerns in its discussion of finality, and yet still suggests that the Ninth Circuit's mandate recall might still have been proper to "avoid a miscarriage of justice" concerning the legality of the applicable sentence. 

Moreover, the dissent in Thompson (per Justice Souter garnering four votes) suggests the general principle of giving "a high degree of deference to the court exercising discretionary authority" to recall its mandate; it also suggests "that deference may be accorded to any reasonable selection of factors as relevant to the exercise of a court's discretion."  I do not think the majority in Thompson disputed these basic principles about reviewing a circuit's decision to recall its mandate, they just viewed the Ninth Circuit exercise of its discretion in Thompson as abusive.

Once again, I certainly can see why the full Ninth Circuit en banc might not agree with the Carrington panel's assessment of "extraordinary circumstances."  And I suspect the Justice Department will seek (and secure?) en banc review.   But, as Orin notes, the Justice Department apparently did not even appeal Carrington's precursor ruling from the Ninth Circuit.  Perhaps this is because DOJ properly feels it has more pressing tasks than trying every means to preserve a possibly unconstitutional sentence.

Related posts:

• What wrong with equitable Booker retroactivity in the Ninth Circuit?
• Distinguishing finality interests between convictions and sentences

UPDATE:  A helpful reader suggested I clarify the reality that the huge Ninth Circuit "doesn't sit en banc. Instead, they create 11-judge panels. Circuit Rule 35-3."

A CORRECTION: Another reader has reminded me that the Ninth Circuit this year changed to 15-judge panels for its en banc hearings.

Distinguishing finality interests between convictions and sentences

As I await more responses to why the Ninth Circuit's Carrington ruling should be troubling (query here), let me spotlight key distinctions between finality interests regarding convictions (especially state convictions) and regarding sentences (especially federal sentences).  These distinctions are, in my view, critical to a complete understanding of the dynamics of retroactivity doctrines.

Teague, the 1989 SCOTUS case defining modern retroactivity doctrine, was about whether and when a new federal constitutional rule ought to disrupt final state convictions.  Structural concerns about finality are at their zenith here or else every long-ago convicted state defendant (even those who finished their sentence decades before) might run to federal court seeking to have a long-ago conviction wiped off the books.

Carrington, in sharp contrast, concerns whether a new federal constitutional rule ought to allow reconsideration of a federal sentence still being served.  One might argue that there are no finality concerns because the on-going sentence under challenge is not final.   Moreover, the result of the challenge won't wipe out a long-ago conviction, it will only (perhaps) alter an on-going sentence.

Some recent capital rulings help put the conviction/sentencing distinction in sharp relief.  After Atkins and Roper declared certain defendants ineligible for the death penalty, few asserted that we should still execute all the now-ineligible death row inmates that were sentenced to death before these rulings.  If "sentence finality" is so important, we should still be execute all the mentally retarded and juvenile capital defendants sentenced before Atkins and Roper.

What wrong with equitable Booker retroactivity in the Ninth Circuit?

Last year, after a Ninth Circuit panel in US v. Crawford, No. 03-30263 (9th Cir. Aug. 24, 2005) (available here), recalled its mandate to allow resentencing in a case that became final before Booker, I suggested that the court was essentially adopting "a policy of equitable Booker retroactivity."  And now, with the fascinating decision in Carrington v. US, No. 03-30263 (9th Cir. Dec. 13, 2006) (available here), that policy takes on new and broader life in the Ninth Circuit.

Orin Kerr seems troubled by Carrington and apparently thinks the Supreme Court will be, too.  But why?  Carrington does not declare Booker retroactive (even though perhaps Booker should be), and it is not clearly unlawful. 

What is unlawful are the constitutionally problematic sentences still being served by the defendants involved in Carrington. The dissenter in Carrington and Orin and others may not be troubled by defendants still serving unconstitutional prison sentences, but what's so wrong with the Ninth Circuit seeking to provide a remedy that is permissible under the law?

Of course, finality is an important value, but this value is always balanced against other values.  If the Ninth Circuit panel in Carrington decides to strike the finality-fairness balance this way after Booker, why should the Supreme Court really care much?   

This issue would be a lot different if the Ninth Circuit were overturning long-ago state convictions based on its own questionable view of constitutional rules.  But, in Carrington, the Ninth Circuit is merely allowing reconsideration of on-going federal sentences based on the Supreme Court's constitutional rules.  Perhaps the Ninth Circuit en banc will seek to balance federal sentencing fairness and finality differently than the Carrington panel majority; but I do not see why the Supreme Court should be eagerly interested in keeping a federal district court from having a chance to reconsider an unconstitutional (and still on-going) federal sentence.

UPDATE: I fill out my perspective on Carrington in this post and in the comments, but I want to further address one commentor's concern that the Ninth Circuit has created a doctrine that unfairly turns on whether a "defendant [was] lucky enough to draw a vocal opponent of the Guidelines."  I share this worry, though it was not often expressed as a critique when this was the standard being used by most circuits when addressing Booker plain error.  In the 1st, 5th, 8th, 10th and 11th Circuits, defendants still on direct appeal would not get a chance to be resentenced right after Booker unless the district judge had been "a vocal opponent of the Guidelines."  (And, of course, the Supreme Court denied cert on all those defendants objecting to this rule.)

Why are folks worried about unequal justice when it might help some defendants, but not when it hurts them?  To paraphrase a famous quote from Justice Brennan, I wonder why we fear too much justice.

Oral argument in Burton retroactivity case

Now the Supreme Court oral argument transcript in Burton v. Stewart is available online at this link.  Once again I will update this post if/when any parts jump out as extra significant, and readers should feel free to use the comments for this purpose.  Also, the National Appellate Journal's on-line blog edition has these helpful summaries of both James and Burton along with links to the transcripts.

UPDATE: This AP report on the two arguments in the Supreme Court today has this telling lead to set up its discussion of Burton:

The Supreme Court was asked Tuesday to lop 21 years off the 46-year sentence of a Washington state man for raping a teenager, in one of two cases the court dealt with involving long prison terms.

I am pretty sure the question presented in Burton technically was not "Should this Court lop 21 years off the 46-year sentence of a Washington state man for raping a teenager?"  But as well all know, in the media, if it bleeds it leads.

Early report on Burton

Over at SCOTUSblog, Lyle Denniston has this early report on today's Burton argument.  Lyle's report suggests that Burton may become a major ruling on habeas law rather than a major ruling on the meaning of Blakely and Apprendi.  We should have a transcript later today so we can see first-hand how the Justices are approaching this case.

Going retro...

As noted here, today the Supreme Court this morning will hear arguments in Burton v. Waddington, the case addressing Blakely retroactivity.  Kent Scheidegger here at Crime & Consequences points to this Criminal Justice Legal Foundation press release explaining why he is hoping for a decision that will "prevent the retroactive application of Blakely." 

Because I am a big fan of Blakely, I believe justice is served by not completely shutting out defendants from Blakely claims just because it took the Supreme Court a long time to finally and fully develop Apprendi/Blakely principles.  That said, I would be quite concerned about the impact of Blakely retroactivity if the Supreme Court last term in Recuenco had indicated that Blakely errors required automatic reversals.  But since Blakely errors can (and surely often will) be subject to harmless error analysis, I am rooting for the Supreme Court to give Blakely some retroactive application.  But I am not betting on it.

Some related posts on Blakely retroactivity:

• Big Blakely retroactivity doings from Alaska
• Read all the Blakely retroactivity SCOTUS arguments
• Colorado Supreme Court says Blakely not retroactive
• Apprendi/Blakely Retroactivity category archive

Super (sentencing) Tuesday

Even though even this blog has been overtaken by election fever (see posts here and here and here), the real excitement on Tuesday for sentencing fans is in the Supreme Court.  Fortunately, SCOTUSblog has posts to keep everyone up on the sentencing excitement at the High Court tomorrow.

This post discusses the issues in James v. United States (No. 05-9264), which asks "whether the Eleventh Circuit erred in ruling that a prior conviction for attempted burglary under Florida law qualifies as a 'violent felony' under the federal Armed Career Criminal Act."  This post discusses the issues in Burton v. Waddington (05-9222), which "considers whether to make retroactive, to earlier cases, its 2004 decision in Blakely v. Washington." In his post on Burton, Lyle Denniston astutely notes  that "a good deal of the argument Tuesday may focus on just how vital the reasonable doubt standard is to guaranteeing fair criminal trials."

I am very much looking forward to having same-day transcripts from James and Burton to keep me occupied while we await firm election results Tuesday night.

Reply brief in Burton on Blakely retroactivity

I just received a copy of the petitioner's reply brief Burton v. Waddington, the case to be argued next week concerning Blakely retroactivity.  Available for download below, here is how it begins:

The consistent theme running throughout the State's brief — as well as its amici's — is a persistent refusal to come to grips with this Court's decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004).  The State suggests that Blakely was not dictated by Apprendi because Apprendi left the meaning of "statutory maximum" unclear.  But the State simply ignores the passages in Apprendi that specifically and repeatedly elucidated the "statutory maximum" concept so as to foreordain the result in Blakely.  Furthermore, the State insists that Blakely — even if it did produce a new rule — did not produce a watershed rule because the decision deals only with sentencing offenders "whose guilt already has been determined." Resp. Br. 34.  But the State ignores that the fundamental point of Blakely, like Apprendi before it, is that courts may not sentence defendants for transgressions for which juries have not found them guilty.  Once the real meanings of Apprendi and Blakely are taken into account, it is clear that the Teague doctrine does not bar Petitioner from seeking relief in this case. And none of the side issues that the State raises prevents this Court from so holding.

Download burton_v_waddington_reply_brief_for_the_petitioner.pdf

Some related posts on Blakely retroactivity:

• Big Blakely retroactivity doings from Alaska
• Read all the Blakely retroactivity SCOTUS arguments
• Colorado Supreme Court says Blakely not retroactive
• Apprendi/Blakely Retroactivity category archive

Big Blakely retroactivity doings from Alaska

Continuing its amazing work as the Blakely frontier, today in Smart v. State, No. A-9025 (Alaska Ct. App. Oct. 27, 2006) (available here), the Alaska Court of Appeals issued an opinion regarding Blakely retroactivity.  Here's a summary as reported to me by a helpful reader:

The court held that it was not bound by the federal Teague standard and was free to apply state retroactivity standards, and applying state retroactivity law found Blakely fully retroactive in a 97-page opinion (counting concurrences and dissents).  The state will likely seek discretionary review from the Alaska Supreme Court.

WOW!

UPDATE: I have now had a chance to give Smart a quick read, and the main opinion's exegesis of Teague is especially impressive and its citation to wikipedia is especially amusing.  All the separate opinions are also great reads.

Read all the Blakely retroactivity SCOTUS arguments

We are now only a week away from SCOTUS arguments in Cunningham, the big case about Blakely's application to California's structured sentencing system (background at this category archive).  But if retroactivity issues are more your cup of Blakely tea — an issue soon to come before the Court in Burton — a lot of exciting reading is now available.

Thanks to Kent Scheidegger providing this post at Crime & Consequences and this link, everyone can now easily access all of the briefs filed so far in Burton.  In an e-mail, Kent noted that the Criminal Justice Legal Foundation's amicus brief at pages 14-15 cites to my very first post about Blakely as evidence that Blakely announced a new rule.  (Not surprisingly, the CJLF brief does not highlight that I might consider Blakely a watershed rule under Teague even if it does qualify as new.)

There is a lot of heavy lifting in all these briefs, but I hope to comment at length about the arguments being made in Burton, and the broader realities of Blakely retroactivity, as the oral argument date (Noember 7) approaches.

Related posts about Burton:

• Supreme Court to take up Blakely retroactivity!
• The cert briefs in Burton
• Could they, would they, should they ... declare Blakely retroactive?
• Top-side brief in Burton, the SCOTUS Blakely retroactivity case
• Apprendi/Blakely Retroactivity category archive

Colorado Supreme Court says Blakely not retroactive

As noted here, the one major lower court ruling that Blakely was to apply retroactively to Apprendi came from the Colorado Court of Appeals in People v. Johnson, No. 03CA2339 (Col. App. Apr. 7, 2005).  Today, the Colorado Supreme Court reversed the Court of Appeals' Johnson opinion in and ruled that Blakely is not to be applied retroactively.  The opinion, available here, has this official summary:

The Supreme Court granted certiorari to review the court of appeals' holding that the rule in Blakely v. Washington, 542 U.S. 296 (2004), applies retroactively to cases that were pending on direct review when the United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000). The court of appeals vacated Respondent Robin Johnson's sentence because Johnson's case was pending when Apprendi was decided. 

The Supreme Court reverses the court of appeals, holding that Blakely announced a new constitutional rule of criminal procedure that does not fall under the exception to the general rule of nonretroactivity of new procedural rules.  Therefore, the Blakely rule only applies to cases that were pending on direct review at the time that Blakely was decided.  Respondent Johnson's conviction was final when Blakely was announced and consequently Johnson is not entitled to the benefit of the Blakely rule.

Of course, the US Supreme Court is due to hear this exact issue this coming Term in Burton v. Waddington.  The posts below provide lots of background on Burton:

• Supreme Court to take up Blakely retroactivity!
• The cert briefs in Burton
• Could they, would they, should they ... declare Blakely retroactive?
• Top-side brief in Burton, the SCOTUS Blakely retroactivity case
• Apprendi/Blakely Retroactivity category archive

Top-side brief in Burton, the SCOTUS Blakely retroactivity case

As detailed in posts linked below, the Supreme Court this Fall will consider Blakely's retroactivity in Burton v. Waddington. (For lots of background on retroactivity issues, I have this category archive cleverly titled "Apprendi/Blakely Retroactivity.")  Though the argument in Burton is not until November, I just received a copy of the brief filed today by the petitioner.  This brief is available for download below, and here are snippets from the summary of argument:

The retroactivity doctrine established in Teague v. Lane, 489 U.S. 288 (1989), does not bar applying this Court's decision in Blakely v. Washington, 542 U.S. 296 (2004), to Petitioner's habeas corpus claim.

I. The Teague doctrine applies only to decisions that announce "new rules" of criminal procedure, not to those that are "merely an application of the principle that governed" a prior Supreme Court case.  The Blakely decision falls into the latter category....

II. Even if this Court were to hold that Blakely did somehow announce a "new rule," its rule would apply retroactively under Teague's exception for "watershed rules of criminal procedure."

Download burton_opening_merits_brief_final.pdf

Related posts on Burton:

• Supreme Court to take up Blakely retroactivity!
• The cert briefs in Burton
• Could they, would they, should they ... declare Blakely retroactive?

Press coverage of cert grant in Burton

The MSM has just a little coverage of the cert grant in Burton v. Waddington, the case in which the Supreme Court has decided to take up the issue of Blakely retroactivity (basics here, commentary here).  The AP provides this (slightly inaccurate) description of main issue in Burton, and this local story from the Seattle Post Intelligencer provides more background about the facts in the case.

Along with others with whom I have spoken, I continue to scratch my head about why the Supreme Court chose Burton as the case to address Blakely retroactivity.  Perhaps the extent of the Blakely-violative enhancement (which produced a 20-year sentence increase) caught the Justices' attention, or perhaps they just wanted to take yet another case from Washington.  Whatever the reason for taking Burton, it is going to be a Blakely SCOTUS fall with both Burton and Cunningham coming up for argument.

The cert briefs in Burton

Thanks to a couple of kind readers, I now have copies of the cert briefs from Burton v. Waddington, the case in which the Supreme Court has decided to take up the issue of Blakely retroactivity (basics here, commentary here).  Relatedly, federal public defender David Porter has some advice for practitioners at the Ninth Circuit Blog:

With this cert. grant and the Court's earlier grant in Whorton v. Bockting (on the issue of Crawford's retroactivity), it is more important than ever to PRESERVE THE ISSUE.

Download burton_petition.pdf

Download burton_brief_in_opp.pdf

Download burton_reply_cert.pdf

Could they, would they, should they ... declare Blakely retroactive?

I am not sure what I consider more fun right now: speculating why exactly the Supreme Court has decided to take up in Burton v. Waddington the issue of Blakely retroactivity in the absence of any real lower court split (basics here) OR speculating whether the Court has the cohones to declare Blakely retroactive.  Bright commentors are already thinking through the merits here, though they make the common mistake of overlooking that Schriro (concerning Ring's retroactivity) only considered the judge/jury aspect of factfinding, and not the additional burden of proof issue.  Also, recent changes in personnel make every Blakely-related Justice head-count different now.

Way back when, I did a lot of coverage of Blakely retroactivity issues, and most of my major posts on the topic can be found in this category archive.  Here are some highlights for those now eager to read up on this issue:

• Thoughts and holdings on Blakely retroactivity
• Thoughts on Retroactivity and Clemency
• More on Blakely's retroactivity
• Retroactivity contrasts and contentions
• Washington Supreme Court declares Blakely not retroactive
• Ninth Circuit says Blakely not retroactive
• The human face of retroactivity
• Seeking retroactive Blakely "Justice for All"
• More academic arguments for Blakely retroactivity

Supreme Court to take up Blakely retroactivity!

Though I was prepared for the big SCOTUS sentencing news to emerge from new opinions, instead the news comes from a cert grant.  As reported here at SCOTUSblog:

The Court also agreed to hear a case on the retroactivity of its ruling in Blakely v. Washington, one of a series of rulings limiting criminal sentences when facts have not been found by a jury, but by a judge.  The new case is Burton v. Waddington (05-9222). The case tests whether Blakely established a new rule and, if it did, whether it applies retroactively. The Court's grant of review of these issues was something of a surprise, since the Court has repeatedly refused to hear retroactivity claims on the Apprendi line of cases.

One of many ironies here, of course, is that Blakely retroactivity is one of the few major post-Blakely issues that has not generated much of a lower court split in the states or in the federal system.  Nevertheless, this issue has long been on my list of post-Blakely issues that SCOTUS should resolve.  And I am, of course, please to see SCOTUS take my advice to fill its fallow docket with Blakely and Booker issues.

Right now, I know nothing about the particulars of Burton v. Waddington except that it comes from the Ninth Circuit.  Readers are encouraged to fill me in, and I'll be doing a bit of my own digging. Good thing I already have this Apprendi/Blakely Retroactivity category archive collecting my posts on this topic.

DC Circuit weighs in on Booker retroactivity issue

The DC Circuit today in In Re: Zambrano, No. 05-3106a  (D.C. Cir. Jan 10, 2006) (available here), had an opportunity to talk about Booker retroactivity in the habeas context.  Here is the introduction and conclusion to the careful and clear opinion:

Regulo Zambrano applies for leave to file a second motion to vacate his criminal sentence pursuant to 28 U.S.C. § 2255, contending that the sentence is unconstitutional under United States v. Booker, 125 S. Ct. 738 (2005).  We cannot authorize the filing, however, because the Supreme Court has not made Booker retroactive to cases on collateral review....

For these reasons, we conclude that Booker is not a new rule of constitutional law "made retroactive to cases on collateral review by the Supreme Court" within the meaning of 28 U.S.C. § 2255.  In so holding, we join all of the circuits that have considered the question.  The application for leave to file a second § 2255 motion is denied.

Fifth Circuit officially rejects retroactive application of Booker

The Fifth Circuit has, through its decision in US v. Gentry, No. 04-11221 (5th Cir. Dec. 8, 2005) (available here), joined circuit bandwagon in declaring that Booker is not to be applied retroactively.  Providing a thorough analysis of all the basic doctrinal issues (but not acknowledging any academic commentary to the contrary), the Gentry court ends its analysis with this concluding paragraph:

In In re Elwood, we held that Booker may not apply retroactively to cases on collateral review for purposes of a successive § 2255 motion. Elwood, 408 F.3d 211 (5th Cir. 2005).  Now, we join the several courts of appeals that have held that Booker does not apply retroactively to initial § 2255 motions. Because we hold that Booker does not apply retroactively to Gentry's motion, Appellant's motion fails.

A final footnote in Gentry cites to similar decisions from the 2d, 3d, 6th, 7th and 11th Circuits.  I also believe that the 4th, 8th, 9th and 10th Circuits have also formally rejected claims for Booker retroactivity.  I wonder how much longer we will have to wait for the last non-retroactivity shoes to drop from the 1st and DC Circuits.

More academic arguments for Blakely retroactivity

Though the Supreme Court seems to be in no rush to address Blakely or Booker retroactivity (details here) student scholars continue to address the important retroactivity issue.  As previously detailed here, my terrific research assistants has an article in the Ohio State Law Journal entitled "Justice for All: Analyzing Blakely Retroactivity and Ensuring Just Sentences in Pre-Blakely Convictions."  And now I have seen two other similar efforts:

• The Cardozo Law Review's latest issue includes a student note entitled "Is Blakely v. Washington Retroactive?" by Haifeng Peng.  Available here, the article argues that Blakely should be found retroactive on a number of theroies.

• The Wisconsin Law Review's forthcoming issue includes a Comment entitled "Reasonable Doubt in the Rear-View Mirror: The Case for Booker/Blakely Retroactivity in the Federal System" by Nic Eichenseer.  I have kindly been given permission to make the article available here: Download blakely_retroactivity_eichenseer_final_wpermission.doc

I wonder what might happen if every defendant subject to unconstitutonal judicial factfinding whose sentence was final before Blakely and Booker were to file habeas petitions with all three of these articles attached. 

Is SCOTUS soon to take up Booker retroactivity?

Over at SCOTUSblog, Lyle Denniston has this extended post which raises the possibility that the Supreme Court may be seriously contemplating granting cert on a case which raises the issue of Booker's retroactivity.  Lyle's post effectively walks through the basic legal issues, and here is his reason for thnking the Justices may be interested in this matter:

A case directly raising the retroactivity issue, Clark v. U.S. (docket 05-5491), is scheduled to be considered by the Court at its Conference on Nov. 23, according to the Court's public docket. The Court has asked for, and received, a response from the Solicitor General. At least ten other pending cases on the issue have been ready for Court action, but have not been acted upon, apparently awaiting the outcome of the Clark case. Those ten, too, are scheduled for the Nov. 23 Conference, according to the docket.... [T]he fact that other pending cases are being treated as if they were dependent on the outcome shows a heightened level of interest in the issue presented.

I will be (quite) pleasantly surprised if the Court decides to take up this issue, even though I am (quite) certain that all the issues relating to Apprendi, Blakely and Booker retroactivity need to be conclusively resolved ASAP.

Notably, as discussed in a series of recent posts (here and here and here), the Court did recently grant cert in Washington v. Recuenco (docket 05-83) in order to explore whether Blakely errors can be subject to harmless-error analysis.  Perhaps four Justices have decided that this Term is the time to sort out all the "backward-looking" questions about how to handle cases sentenced before Blakely and Booker in violation of the constitutional rules established in those cases.

For a lot more discussion of these issues, check out this category archive which collects my recent posts on Blakely and Booker retroactivity.  In addition, for more thoughtful scholarly coverage of many retroactivity stories and angles, be sure to check out my terrific research assistant's forthcoming Ohio State Law Journal note entitled "Justice for All: Analyzing Blakely Retroactivity and Ensuring Just Sentences in Pre-Blakely Convictions." 

Fourth Circuit addresses Booker retroactivity

I just got word from a helpful reader that the Fourth Circuit today just released an opinion in US v. Morris, No. 04-7889 (4th Cir. Nov. 7, 2005) (now available here), addressing the retroactivity of Booker.  As I dash off to class, I barely have time to reproduce the opinion's first paragraph and promise commentary later:

Debra Lynn Morris appeals the district court's order denying her 28 U.S.C. § 2255 motion for relief from her conviction and sentence. Morris argues that her sentence is unconstitutional under United States v. Booker, 125 S. Ct. 738 (2005), because the district court increased her base offense level using facts that she did not admit and that were not found beyond a reasonable doubt by a jury.  We granted a certificate of appealability to consider whether Morris may raise a Booker claim for the first time in her § 2255 motion when her judgment of conviction became final before the Supreme Court decided Booker.  Nine circuit courts of appeals have considered this issue and have held that Booker does not apply retroactively to cases on collateral review. We agree with these courts, and we therefore affirm the district court's order.

UPDATE: Having now read Morris, I can comment that the decision presents a thorough review of all the standard steps for declaring that Booker is not to apply retroactively.  And, in so doing, the Fourth Circuit makes this statement about Booker that many federal defendants likely find (too) accurate: "the practical net result of Booker is minimal."

Seeking retroactive Blakely "Justice for All"

There are so many interesting stories and angles to examine when considering pre-Blakely sentences that were indisputably imposed in violation of Blakely's constitutional command.  I am thus proud to be able to provide for downloading a forthcoming article which thoughtfully covers many of these retroactivity stories and angle.  This article, which is authored by one of my terrific research assistants and is soon to appear in the Ohio State Law Journal, is entitled "Justice for All: Analyzing Blakely Retroactivity and Ensuring Just Sentences in Pre-Blakely Convictions."  Here is the article's abstract:

In the months following the Supreme Court's holding in Blakely v. Washington, a countless number of state and federal prisoners were hopeful that their unconstitutionally imposed sentences would be revisited. For prisoners who were not given their Sixth Amendment right at sentencing, the question became — in the words of one prisoner — "Who is going to mount the vigorous and spirited campaign this cause so deserves?"

There are strong arguments to suggest that Blakely's requirement of jury fact-finding using the beyond a reasonable doubt standard of proof should be applied retroactively to cases on collateral review.  Similar to Gideon, Blakely is a watershed rule of criminal procedure that implicates the fundamental fairness and accuracy of a proceeding.  This result, however, is unlikely to occur.  The other two branches of government must be prepared to ensure constitutionally just sentences for pre-Blakely defendants.  The legislative branch should contemplate ways in which to minimize the effect a retroactive holding would have on the judiciary and should also correct the recent statutory interpretation of the habeas statute. The executive branch should use its historic remedy of correcting injustices through the clemency process.  Constitutional justice can be accomplished for pre-Blakely defendants and all three branches of government must begin this dialogue to ensure justice for all.

Download blakely_retroactivity_note_final.pdf

Lots of Blakely action in Colorado

As detailed in the second half of this list of announcements, yesterday the Colorado Supreme Court granted cert on six different cases raising Blakely issues of various sorts.  Back in May, the Colorado Supreme Court in Lopez issued long and thoughtful opinion applying Blakely to Colorado's presumptive sentencing scheme (basics here, commentary here); yesterday's cert grants address a number of inevitable follow-up issues.  Also, notably, the Colorado Supreme Court issued GVRs based on Lopez in a number of other cases.

Interestingly, one of the cert grants comes in the case of People v. Johnson; as discussed here, in Johnson an intermediate Colorado appellate court held "that Blakely applies retroactively to the date that Apprendi established its new rule."  Here's how the Colorado Supreme Court frames its cert grant in this Johnson case:

Whether the court of appeals erred in holding that Blakely v. Washington, 542 U.S. 126 (2004) is retroactive to the date Apprendi v. New Jersey, 530 U.S. 466 (2000) was announced.

Because the Colorado Supreme Court did such fine work in Lopez, I will be very interested to see how it handles all these Blakely issues and especially the retroactivity issue.  The Court merits credit for taking on all these important follow-up Blakely issues; perhaps it might inspire SCOTUS to follow suit.

Sixth Circuit rejects effort to use mandate recall to achieve Booker retroactivity

Today, in US v. Saikaly, No. 01-4001 (6th Cir. Sept. 28, 2005) (available here), the Sixth Circuit issued an order which rejects a defendant's effort to use a motion to recall the mandate to have Booker applied to a case that became final in early 2004.  Here is the heart of the Sixth Circuit's discussion:

The defendant [asks] this court to recall its mandate and to reopen his prior appeal to this court, a procedural maneuver that would permit him to raise a Booker claim as part of that appeal.  Although courts of appeals have the inherent authority to recall a mandate, such power should only be exercised in extraordinary circumstances because of the profound interests in repose attached to a court of appeals mandate....

Although this court has granted motions to recall the mandate in cases which were not yet final at the time the motion was filed, other courts of appeals which have addressed similar motions based upon Booker (or the earlier decisions in Apprendi and Blakely) have found no extraordinary circumstances warranting the recall of a mandate issued in a prior (and final) direct appeal. These decisions hold that the proper remedy to attack a sentence in a final criminal proceeding lies under § 2255, and the fact that such remedy is no longer available does not warrant a recall of the mandate. [Cites to cases from the 1st, 2d, 7th, and 10th Circuits.]

These decisions deny any avenue of relief under Booker to defendants whose direct appeals were final at the time that decision was rendered.  Although the defendant may argue that there is an element of unfairness in this result, it is the same element found in any Supreme Court decision which announces a new rule applicable to criminal defendants with pending prosecutions or appeals, but which is not made retroactive to defendants whose cases are final. The incremental change in the law as evidenced by Apprendi, Blakely, and Booker simply is not the type of unforeseen contingency which warrants recall of the mandate to permit yet another round of appellate review.

Significantly, this Saikaly ruling does not mention the Ninth Circuit's recent ruling in Crawford which seemed to permit using motions to recall the mandate as a means to have Booker applied to cases that had become final before January 2005.  As explained here and here, the Ninth Circuit's Crawford decision indicated that some defendants may obtain a form of what I have called "equitable Booker retroactivity" by moving to recall the mandate and arguing that "the facts of their individual cases" constitute "extraordinary circumstances" justifying resentencing. 

Ninth Circuit officially holds Booker not retroactive

Back in July, though its ruling in Schardt v. Payne, No. 02-36164 (9th Cir. July 8, 2005) (discussed here), the Ninth Circuit decided that Blakely is not to be applied retroactively.  Today, in US v. Cruz, No. 03-35873 (9th Cir. Sept. 16, 2005) (available here), the other shoe dropped:

This appeal requires us to decide whether United States v. Booker, 125 S. Ct. 738 (2005), applies retroactively to cases on collateral review. We hold that Booker does not apply retroactively to convictions that became final prior to its publication.

Despite this (unsurprising) ruling in Cruz, as explained here and here, the Ninth Circuit's earlier decision in the Crawford case may allow some defendants in the Ninth Circuit to obtain a form of what I have called "equitable Booker retroactivity" by moving to recall the mandate and arguing that "the facts of their individual cases" constitute "extraordinary circumstances" justifying resentencing.

In praise of Okai and its burden of proof insights

In this post praising some notable recent district court decisions, I spotlighted US v. Okai, 2005 WL 2042301 (D. Neb. Aug. 22, 2005), in which Judge Joseph Bataillon continues the strong work on due process and burdens of proof that he started in US v. Huerta-Rodriguez right after Booker (details here).  I have now had a chance to give Okai a close read, and its many Booker and burden-of-proof insights merit additional attention. 

Everyone working in the federal sentencing trenches should be sure to give Okai (which I now am able to provide for download below) a full read ASAP.  Among the passages that garnered my attention is the following section that suggests that the burden-of-proof aspects of Apprendi and Blakely merit retroactive application:

Although a misallocation of factfinding responsibility (judge versus jury) does not warrant retroactive application, Schriro, 124 S. Ct. at 2523, the same cannot be said for the retroactivity of application of a preponderance of evidence standard as opposed to a reasonable doubt standard.  See Hankerson v. North Carolina, 432 U.S. 233 (1977) (giving retroactive effect to rule requiring proof of all elements of crime beyond a reasonable doubt and voiding presumptions that shift the burden of proof to defendant); Ivan v. City of New York, 407 U.S. 203, 205 (1972) (holding that the purpose of a reasonable doubt standard is "to overcome an aspect of a criminal trial that impairs the truth-finding function, and Winship is thus to be given complete retroactive effect"). Application of a lower standard of proof may be an error that significantly affects factfinding accuracy and undermines society's confidence in the result of the trial. See Schiro, 128 S. Ct. at 2523.

Download bataillon_okai_opinion.pdf