Monday, January 15, 2007

Still more long weekend sentencing reading

If you have somehow made it through the articles noted here and here, then you are ready for a new Blakely piece now available SSRN here.  The piece is by Laura Appleman and entitled "Retributive Justice and Hidden Sentencing After Blakely." Here is the first part of the abstract:

Blakely and its recent progeny have focused attention on a broad swath of fact-finding in sentencing decisions. In doing so, however, they have raised a number of complex questions about how fact-finding operates in the front- and back-ends of sentencing — what I call ancillary, or hidden, sentencing proceedings.  These ancillary sentencing proceedings have been almost entirely neglected in post-Blakely case law and scholarship.

Accordingly, this Article re-evaluates a variety of ancillary sentencing proceedings (including pre-sentence reports, prior offender statutes, probation, parole, post-release supervision and restitution) under Blakely.  As part of this re-evaluation, I also locate a new paradigm of retributive justice underpinning the Court's recent sentencing decisions.  Specifically, I contend that a theory of limited expressive retribution best suits the Court's new sentencing jurisprudence, because it encompasses both the historical antecedents of the 6th Amendment jury right and modern ideals of punishment.

January 15, 2007 in Blakely Commentary and News | Permalink | Comments (1) | TrackBack

Monday, December 04, 2006

An intriguing note on Blakely and "civil" remedies

The latest issue of the Columbia Law Review includes an interesting Note exploring how Blakely might affect orders of restitution and forfeiture.  This Note is entitled "A Civil Jury in Criminal Sentencing: Blakely, Financial Penalties, and the Public Rights Exception to the Seventh Amendment," and is available at this link.  Here is the abstract:

In the 2004 case of Blakely v. Washington, the Supreme Court held that the Sixth Amendment's criminal jury trial right applies not only to the guilt phase of a trial, but also to the sentencing phase.  Since then, criminal defendants have brought Sixth Amendment challenges to judge-imposed restitution and forfeiture, arguing that the facts underlying such financial penalties must be proven to a jury beyond a reasonable doubt.  Many circuits have decided that Blakely does not apply to restitution and forfeiture because they are civil remedies, as opposed to criminal penalties, and thus do not fall within the ambit of the Sixth Amendment.  This Note argues that, even if restitution and forfeiture are civil in nature, the logic of Blakely suggests that the Seventh Amendment's civil jury right nevertheless applies to such penalties.  It then shows how the "public rights" doctrine — a judicial construct in administrative law used to justify exceptions to the Seventh Amendment’s civil jury right — provides constitutional support for exempting certain financial penalties from the reach of Blakely.

December 4, 2006 in Blakely Commentary and News, Criminal Sentences Alternatives | Permalink | Comments (1) | TrackBack

Wednesday, October 04, 2006

Blakely's silver lining (to go with its heart of gold)

Regular readers know I am a fan of the Blakely ruling on its own terms.  But critics of Blakely and Booker will want to be sure to check out Joanna Shepard's arguments, set out in her new paper entitled "Blakely's Silver Lining: Sentencing Guidelines, Judicial Discretion, and Crime," that Blakely could ultimately produce a reduction in crime rates.  Here is the abstract to this intriguing paper:

The Supreme Court's recent striking down of criminal sentencing guidelines in its Booker and Blakely decisions could have a substantial unexpected benefit: the likely expansion in judicial discretion may reduce crime. I show that, contrary to the expectations of many of the original supporters of sentencing guidelines, guidelines are associated with significant increases in crime.  After developing several economic theories of guidelines' impacts, I investigate these impacts empirically using a large state-level data set.  This study is the first to use regression analysis to explore the relationship between sentencing guidelines and crime.  Results show that guidelines are associated with increases in both violent crime and property crime.  If, as is probable, the alternatives to guidelines after Booker and Blakely expand judicial discretion in criminal sentencing, then crime may decrease substantially.

As the abstract reveals, this paper is not really about Blakely and jury trial rights, but rather about the relationship between judicial sentencing discretion and crime rates.  The Justice Department has been saying, since Blakely and before, that rigid mandatory sentencing guidelines have helped produce a reduction in crime.  This paper seems to argue that the opposite is true.  (Personally, I think these complex dynamics cannot be subject to any simple cause-effect relationship.)

UPDATE:  Michael Connelly here at Corrections Sentencing has a strong review of this article.  He notes some methological concerns and then shares there concluding sentiments:

It's useful for the points it manages to make and for the hole it puts in the conventional wisdom.  We need this kind of shakeup of our suppositions.  What the article needed was peer review by trained criminologists and political scientists, not folks trained in the narrow cognitive world of law and econ.  The author would have had to have made a much better argument, but the one made is one that must be considered by all of us, nevertheless.

October 4, 2006 in Blakely Commentary and News | Permalink | Comments (0) | TrackBack

Tuesday, July 04, 2006

A holiday retrospective on Blakely fireworks

On the last two Independence Days, I have had Blakely on my blog brain.  So, to keep up tradition, today I will just link back to these prior July 4th Blakely discussions:

July 4, 2006 in Blakely Commentary and News | Permalink | Comments (0) | TrackBack

Thursday, June 29, 2006

A Blakely perspective on Clark

The Supreme Court's discussion of due process, insanity and mens rea today in Clark is another example of the challenging intersection of criminal law and psychology.  The majority opinion, which rejects various due process claims, is narrowly written so Clark will likely not be a due process watershed ruling.  Indeed, what I find most interesting about Clark is how the votes and opinions shake out as compared to cases in the Apprendi-Blakely line.

Intriguingly, Justice Souter authored Clark and he brought along Justices Scalia and Thomas from the Blakely five (as well the newbie Justices) in an opinion that is functional, relatively narrow, and emphasizes the importance of the "State chosen standard[s]."   Meanwhile, Justice Kennedy authors a strong dissent, joined by Justices Stevens and Ginsburg, which accuses the majority of "fail[ing] to appreciate the implications for Winship."  Winship, of course, is the key due process ruling clarifying the import and reach of the requirement that prosecutors prove elements of an offense beyond a reasonable doubt.

I am not sure what all this might means for the big Blakely cases on the horizon (perhaps nothing), but it confirms my view that, outside the death penalty context, the traditional liberal/conservative labels and expectations are hard to square with the actual outcomes in a range of large and small criminal justice cases the Court decides.

June 29, 2006 in Blakely Commentary and News | Permalink | Comments (3) | TrackBack

Saturday, June 24, 2006

Blakely turns two ... let's forum!

Two years ago today, the Supreme Court handed down its decision in Blakely v. Washington.  In my first post after the decision, I commented that "the ramifications of this decision for modern sentencing reforms cannot be overstated," and that there will "be lots and lots more litigation (some of which will surely make its way again to the Supreme Court) about what [Blakely] now means for the operation of structured sentencing systems."  As we await a decision from SCOTUS in Recuenco on the nature of Blakely error, and also look forward to two major Blakely cases on the docket next Term (Cunningham and Burton), the accuracy of these predictions are pretty clear.

So, on its birthday, what do you get for Blakely, the sentencing case that has everything?   My idea is to honor the day by starting to post any commentary sent my way in response to the "Blakely at two" blog forum I proposed in this post

June 24, 2006 in Blakely Commentary and News | Permalink | Comments (1) | TrackBack

Tuesday, June 06, 2006

Any interest in a "Blakely at two" blog forum?

In light of the cert grant in Burton to address Blakely retroactivity, I am thinking it might be fun to convene a blog forum later this month on Blakely two years later. 

By the time of Blakely's two-year anniversary (which is June 24, 2006), we ought to have a decision in Recuenco discussing whether Blakely errors can be subject to harmless-error analysis or instead are structural errors.  In addition, this summer will be filled with briefing on both the Burton retroactivity issue and Blakely's fate for California in the Cunningham case.  With all this on-going Blakely activity, I wold be especially interested to hear various opinions from various folks about the the state and fate of Blakely two years later.

If readers like this idea, let me know in the comments or via e-mail.  And send me an e-mail if you would be interested in participating in such a "Blakely at two" blog forum.  Thanks.

June 6, 2006 in Blakely Commentary and News | Permalink | Comments (1) | TrackBack

Wednesday, May 24, 2006

Another measure of the impact of Apprendi, Blakely and Booker

TaxProf Blog and the ELS Blog are both talking about the most heavily cited court cases inspired by this recent work by Adam Steinman, which concludes with two fascinating charts in an appendix (at pages 143-45) with the 15 most-cited cases by federal courts and tribunals and the 30 most-cited cases by federal and state courts and tribunals.  These charts tell lots of interesting tales, but of course I am zeroed in on the sentencing stories.

Not surprisingly, nearly every case in both of the most-cited charts are at least 20 years old and many cases on the top 30 list of combined federal-state cites are criminal procedure classics like Miranda and Terry and Brady.  But, tellingly, there is one more recent case cracking the top 30 list of combined federal-state case cites, Apprendi v. New Jersey, even though that decision was a mere five years old when Steinman ran these numbers in June 2005. 

In addition, with the help of a few quick Westlaw searches, I think an updated chart of these cite counts might already have both Blakely and Booker cracking the top 30 list of combined federal-state case cites.  By these measures, there is now some support for my (over-heated?) claim in this seemingly long-ago Slate piece that Blakely might be "the biggest criminal justice decision not just of this past term, not just of this decade, not just of the Rehnquist Court, but perhaps in the history of the Supreme Court."

May 24, 2006 in Blakely Commentary and News | Permalink | Comments (0) | TrackBack

Monday, March 20, 2006

Eighth Circuit affirms another lengthy sentence for an uncharged murder

In his opinion for the Court in Blakely, Justice Scalia assails the notion that the Sixth Amendment could mean that a "jury need only find whatever facts legislature chooses to label elements of the crime, and that those it labels sentencing factors — no matter how much they may increase the punishment — may be found by the judge."  The problem, explains Justice Scalia, is that this "would mean, for example, that a judge could sentence a man for committing murder even if the jury convicted him only of illegally possessing the firearm used to commit it...." 

If this possibility truly concerns Justice Scalia and other members of the Blakely majority, the Supreme Court ought to be interested in a cert. petition coming from today's unpublished decision by the Eighth Circuit in US v. Rashaw, No. 05-1839 (8th Cir. Mar. 20, 2006) (available here).  As detailed in the first paragraph, the Rashaw case fits Justice Scalia's description:

A jury convicted Geoffrey L. Rashaw on two counts of being a felon in possession of a firearm and one count of possessing an unregistered firearm.  At Rashaw's post-Booker sentencing, the government presented evidence that Rashaw possessed firearms in connection with a double homicide.  Based on the evidence, the district court set Rashaw's base offense level at 43 ... [which under the] sentencing guidelines set the sentence at life imprisonment.  Because statutory provisions limited the sentence on each count to ten years, however, the court sentenced Rashaw to three consecutive 120-month terms of imprisonment under U.S.S.G. § 5G1.2(d).

As the Eighth Circuit explains, "Rashaw appeals arguing the 360-month sentence is unreasonable because the district court expressly based the sentence on a finding that he had committed an unrelated, uncharged double murder."  In addition, Rashaw "argues that under United States v. Booker, 543 U.S. 220 (2005), the double murder had to be found by a jury beyond a reasonable doubt, rather than by a judge on a preponderance of the evidence."  The Eighth Circuit is unconvinced:

Because the district court applied the guidelines in an advisory manner, the court could find sentence-enhancing facts by a preponderance of the evidence....  The double murder was relevant conduct that was properly considered in deciding Rashaw's guidelines range and the factors in 18 U.S.C. § 3553(a).

So, as Justice Scalia feared, Rashaw is convicted at trial of illegal possession of firearms, and gets 30 years for uncharged murders.  But this case does not exactly fit Justice Scalia's description: the Eighth Circuit notes that "Rashaw points out the guns he possessed with respect to his sentence were not involved in the double homicide."  No problem, says the Eighth Circuit: "The § 2K2.1 enhancement for using a firearm in another felony need not be the same firearm involved in the offense of conviction."  Wow!

If Blakely's procedural rights are ever going to have any bite in an "advisory" federal sentencing system, this Rashaw case would seem to be a good vehicle for testing the courage of the Blakely five's convictions.  And I continue to wonder what Justice Alito and Chief Justice Roberts, if they share aspects of Justice Scalia's judicial philosophy, might think about cases of this sort.

Related posts on uncharged murder sentencing:

March 20, 2006 in Blakely Commentary and News, Booker and Fanfan Commentary, Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (8) | TrackBack

Wednesday, March 15, 2006

The federal litigation shock of Blakely and Booker

With thanks to How Appealing, I see that the Administrative Office of the U.S. Courts has issued this news release which documents some of the impact of Blakely and Booker on the workload of the federal courts.  Here are some criminal law filing details from the release:

Criminal appeals jumped 28 percent in FY 2005 to 16,060, with growth in cases related to nearly all types of crimes.  The most significant increases were in appeals related to drug offenses (up 31 percent to 6,099); immigration (up 55 percent to 2,896); firearms and explosives (up 23 percent to 2,505); and property (up 15 percent to 1,967)....

Original proceedings [in circuit courts] climbed 23 percent to 5,017 as state and federal prisoners filed 3,617 second or successive motions for permission to file habeas corpus petitions (up 42 percent) following the Supreme Court's decisions in Blakely v. Washington and U.S. v. Booker....

The new release also has some interesting data in changes in the case mix of criminal filings in the federal district courts:

Nationwide, criminal filings in the U.S. district courts fell 2 percent to 69,575 in FY 2005, and the number of defendants in these cases dropped 1 percent to 92,226.  Despite the overall decline, increases occurred in cases involving drugs other than marijuana, sex offenses, and immigration offenses.

March 15, 2006 in Blakely Commentary and News, Booker and Fanfan Commentary, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Wednesday, March 08, 2006

Ohio defenders seek reconsideration of Foster's retroactive application

Today brings an interesting development in the saga of Blakely's application to Ohio's sentencing law.  Recall that last week, the Ohio Supreme Court in Foster found Blakely applicable to Ohio's structured sentencing system and adopted a Booker-type remedy (basics here, commentary here and here and here).  Now, the Foster defendants and a supporting amicus have filed for reconsideration in the Ohio Supreme Court claiming that the "retroactive application of this case's remedy to persons who committed their criminal offenses prior to the release of the Opinion, violates clearly established United States Supreme Court precedent regarding ex post facto and due process."

I have provided links to two briefs filed in support of this motion for reconsideration.  Here is a portion of the argument summary from Amicus Curiae Cuyahoga County Public Defender:

Your amicus' argument against retroactive application to persons who committed their offenses prior to 9:00 a.m. on February 27, 2006, can be summarized as follows. At the time of the offense conduct, the criminal defendant enjoyed, as a standard range of punishment, a presumptive sentence of minimum and concurrent terms of imprisonment; a trial judge could only overcome that presumption by making statutorily prescribed findings. This Court correctly held that, because the trial judge and not a jury was entrusted with making these findings, the statutory scheme violated the Sixth Amendment right to trial by jury as interpreted by Blakely. In its opinion in the instant case at “Part V. Remedy,” ¶¶ 84-102, this Court has eliminated the presumptive sentence, thus relieving the trial judge of having to make any findings whatsoever before imposing a sentence at any point in the statutory range and before ordering terms of imprisonment to be served consecutively to one another.

Applied prospectively, this Court's employment of severance to save the statutory scheme from an unconstitutional interpretation, as a general matter, does not violate ex post facto and the due process considerations attendant thereto.  However, when applied to those persons whose crimes were already committed, this Court's remedy unconstitutionally changes the rules to the defendant's detriment by stripping defendants of the protections of the presumptions discussed above.  Just as the General Assembly could not amend the statutory scheme in this manner and legislate that the new scheme apply to those whose crimes have already been committed, this Court is precluded from doing the same.

Download FosterReconsiderationMotion.pdf

Download FosterAmicusReconsiderationMemo.pdf

UPDATE: The ACLU of Ohio has also filed a brief seeking reconsideration of the Foster remedy.  The ACLU brief, which can be downloaded below, stresses separation of powers concerns.  Here is a snippet:

The ACLU files this supporting brief as amicus to address [its] concern that ... Foster violates the separation of powers by usurping the legislative function specifically and exclusively allocated to the General Assembly.

Download aclu_foster_blakelybooker_recon_amicus.pdf

March 8, 2006 in Blakely Commentary and News, Blakely in the States, Blakely in the Supreme Court, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (3) | TrackBack

Thursday, February 23, 2006

The latest must-read on Blakely/Booker

Professor Ron Wright, throughout his copious work on federal and state sentencing systems, always adds an insightful and distinctive perspective to our understanding of sentencing reform.  (Bias acknowledgment: Ron is a co-author on my casebook, Sentencing Law and Policy: Cases, Statutes and Guidelines.)  Ron's latest paper (available here), entitled "The Power of Bureaucracy in the Response to Blakely and Booker," is no exception.  Here is part of the abstract:

How will different jurisdictions respond to the recent Supreme Court decisions in Blakely v. Washington and United States v. Booker, which require jury fact-finding to support certain types of sentences?  The best clues in predicting the answer to this question come from the people who know this world best, the sentencing bureaucracy.  Sentencing commissions, mostly for benign reasons, hope to preserve their own place in the sentencing structure, or to expand their role if possible.  The particulars shift from place to place, but this powerful tendency of bureaucracies for self-preservation offers a reliable way to predict the reactions of sentencing systems to the upset from Blakely and Booker.

February 23, 2006 in Blakely Commentary and News, Blakely in the States, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0) | TrackBack

Monday, February 13, 2006

Blakely and Booker action at the Ninth Circuit's judicial conference

With thanks to Howard for the link, I see from this news release that the theme of the Ninth Circuit's judicial conference this summer is "Seismic Shifts in the Law and in Our Lives."  That document explains that "general sessions will focus on sentencing, juries, natural disasters, court security and disaster planning, and judicial wellness."  By my lights, all of these topics could be viewed as various aspects of Blakely and Booker, save perhaps court security.

February 13, 2006 in Blakely Commentary and News | Permalink | Comments (0) | TrackBack

Sunday, February 12, 2006

A Valentine week sentencing wish list

For a long-married fellow like me, Valentine's Day feels like being an Olympian heavily favored to win a gold: if I perform well, I will only meet expectations; if I perform poorly, many are disappointed and my reputation can be tarnished.  Nevertheless, I am looking forward to this Valentine week with hope that some sentencing-related wishes might be fulfilled by others:

US Supreme Court: I would love a cert grant in the major state Blakely cases that are scheduled to be conferenced this Friday (background here and here and here), in part because I am so curious to find out what Justice Alito and Chief Justice Roberts think about Blakely (background here and here). 

State Supreme CourtsI would love decisions in major Blakely cases that the Ohio Supreme Court has been considering for nearly seven months (background here) and that the Michigan Supreme Court has been considering for over three months (background here).

US Sentencing Commission:  I would love new data about the post-Booker world, especially since it's been more than five weeks since the USSC's last data report (background here).  I would also love some official news about when we might expect the USSC's comprehensive Booker report.  Post-Booker patience may be a virtue, but mine is short.

US Department of JusticeI would love a thoughtful and public DOJ report on the pros and cons of the post-Booker world from the perspective of federal prosecutors.  We've seen such a report from federal defenders in a (long and powerful) letter to the USSC.  I'd now like to hear the other side, perhaps through a similar letter to the Commission.

Circuit and District Courts: I would love a lot more decisions, like those recently from the Sixth Circuit and Judge Adelman and Judge Bataillon, which take both parts of the Booker ruling seriously and give focused attention to the plain text of 3553(a).

February 12, 2006 in Blakely Commentary and News, Blakely in the States, Blakely in the Supreme Court, Booker and Fanfan Commentary, Who Sentences | Permalink | Comments (3) | TrackBack

Tuesday, January 17, 2006

The possible impact of a Sca-Roberts on sentencing jurisprudence

From a quick review, the Supreme Court's 6-3 ruling today in the assisted suicide case, Gonzales v. Oregon, seems rich with meaning and ironies.  Of course, I am always seeing sentencing angles (even when they are not there), and today that angle comes from the fact that Chief Justice Roberts joined Justice Scalia's dissenting opinion in Gonzales v. Oregon.  When considered together with CJ Roberts' vote and opinion assignment to Justice Scalia in the 5-4 capital case decided last week (details here), I cannot help but observe that the new Chief seems so far to be quite in tune with Justice Scalia's view of the jurisprudential world.

Of course, though some may bemoan this (admittedly limited) evidence of a "Sca-Roberts," criminal defendants (at least those not on death row) should be pleased my over-reading of these early tea leaves.  As I explained in this post following the Alito nomination, from the perspective of a criminal defendant, a Supreme Court filled with justices like Antonin Scalia would not always be so bad because Justice Scalia's constitutional vision sometimes leads him to liberal results: consider Justice Scalia's work in Blakely, where he boldly asserts that "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment," and Justice Scalia's work in Sullivan, where he argues that judges in some cases should not be permitted to affirm convictions by declaring certain constitutional violations harmless.

Recalling the current SCOTUS sentencing head-count on Apprendi-Blakely-Booker issues, it is remarkable to think about what might happen if Justices Roberts (and Justice Alito as well) were to embrace Justice Scalia's perspectives on jury trial rights.  Blakely's reach and impact might ultimately be even broader than anyone has predicted.

January 17, 2006 in Blakely Commentary and News | Permalink | Comments (4) | TrackBack

Monday, January 16, 2006

Why Kaua may be the circuit decision of the month (so far)

January is living up to my prediction as an amazing sentencing month, although I did not predict that we would get so many important and consequential circuit rulings to kick off the new year.  Indeed, the 1st Circuit's decision in Pho, the 4th Circuit's decision in Clark, the 8th Circuit's decision in Mickelson, and the 11th Circuit's decision in Williams are arguably among the most important circuit decisions concerning Booker that we've seen in many months.

But there is one recent circuit decision that should not be overlooked in all the Booker action: the Ninth Circuit's habeas decision in Kaua (discussed here), which ruled (despite a contrary opinion from the Hawaii Supreme Court) that an aspect of Hawaii's sentencing system violates the Apprendi-Blakely rule. Here are just a few reasons why Kaua strikes me as especially important:

January 16, 2006 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News, Blakely in the States, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Thursday, November 17, 2005

Judge Gertner applies Sixth Amendment to restitution

Hall of Famer Massachusetts US District Judge Nancy Gertner issued another major ruling on Booker issues earlier this week with another decision in US v. Mueffelman, No. 01-CR-10387-NG (D. Mass. Nov. 14, 2005) (available here).  In this iteration of Mueffelman, Judge Gertner breaks new ground with respect to the application of Blakely and Booker to orders of restitution:

[T]his case raised an issue of first impression in this Circuit -- whether victims who were not specifically named in the indictment could receive restitution under the MVRA. That issue requires resolution of at least two others -- whether restitution under the MVRA is compensatory (to the victims) or punitive (to the defendant) or both, and if punitive to any degree, whether the order is subject to the protections of the Sixth Amendment. I have concluded that restitution is punitive, and subject to the Sixth Amendment's protections. Nevertheless, in applying that analysis to the case at bar, I have ordered restitution to victims who, while not named in the indictment, fit within the "scheme" that was alleged and proved.

I believe this Meuffleman ruling is the first to find Blakely and Booker applicable to orders of restitution under the MVRA; a number of circuits have expressly rejected such a claim, though the Third Circuit is considering the issue en banc.  Given that Judge Gertner in her first ruling in this case right after Blakely last July essentially predicted the outcome in Booker, I would not quickly presume that her views on these restitution issues won't prevail.

November 17, 2005 in Blakely Commentary and News, Booker in district courts, Criminal Sentences Alternatives | Permalink | Comments (2) | TrackBack

Monday, October 24, 2005

Blakely/Booker cases on-line about to top 10,000!

Today, which happens to be exactly 16 months since the Blakely decision was handed down, a search on Westlaw in the allcases file in the form of "da(aft 6/24/2004) & (blakely booker) & sentenc!" produced 9946 case hits.  (Interestingly, 3603 of these hits are in the allstates database, while 6343 come from the allfeds database.)  A similar search in Lexis, for either the last year or the last six months, gets interrupted "because it will return more than 3000 results."   

Notably, it was just over four months ago, as detailed in this post, that the total number of on-line case hits for this search topped 5000; it appears we are now getting more than 1000 Blakely or Booker decisions coming on-line each month.  Especially given that these numbers do not reflect the tens of thousands of sentencings that Blakely or Booker have impacted which do not result in an on-line opinion, I view this data as providing further support for my (hyperbolic?) claim in this Slate piece last year that "Blakely is the biggest criminal justice decision not just of [the 2003 SCOTUS] term, not just of this decade, not just of the Rehnquist Court, but perhaps in the history of the Supreme Court."

October 24, 2005 in Blakely Commentary and News | Permalink | Comments (2) | TrackBack

Monday, September 19, 2005

Third Circuit to examine en banc Blakely's impact on restitution

The folks over at Appellate Law & Practice have a lot of strong recent posts, including this item which helpfully pointed me to this extended post from the Third Circuit Blog detailing that the Third Circuit "has sua sponte voted to rehear en banc three appeals previously argued before two different panels in which the issue is whether the rule of Blakely and Booker applies to orders of restitution and forfeiture."  By my lights, this is an quite interesting and important development.

As detailed in this post on an Eighth Circuit decision last month, the consensus view in the federal circuits is that neither Apprendi nor Blakely prohibit judicial fact finding for restitution orders.  But, as I have said before, that consensus view seems somewhat suspect in light of Justice Scalia's forceful and broad assertion for the Court in Blakely that "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment."

David McColgin's post at the Third Circuit Blog provides a useful primer on why the Third Circuit will have a lot to consider in these en banc cases, and this prior posts details that at least one academic commentator thinks that the Third Circuit ought to follow a different path than the other circuits on these important issues.

September 19, 2005 in Blakely Commentary and News, Blakely in Appellate Courts, Booker in the Circuits, Criminal Sentences Alternatives, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Friday, August 26, 2005

Is SCOTUS interested in the consecutive sentencing Blakely issue?

Lower courts have all been in agreement that Blakely does not formally apply to a judicial decisions to impose consecutive sentences, even though a functional understanding of Blakely suggests its applicability when a sentencing scheme requires the finding of a predicate fact before a consecutive sentence can replace a presumptive concurrent sentence.  Interestingly, thanks to the reemergence over at INCourts of Michael Ausbrook (whose coverage of state Blakely issues has been missed), I see that the Supreme Court might be interested in the consecutive sentencing Blakely issue.

As Michael explains in this post, after Indiana defendant Smylie filed a cert. petition on the question of Blakely's applicability to consecutive sentences, the Supreme Court ordered Indiana to file a response even though the state has waived its right to respond.  Though I think other Blakely issues are more pressing and one should not read too much into a briefing request, I think Michael is right to comment that "somebody in Washington seems interested in Smylie, Blakely, and consecutive sentencing."

August 26, 2005 in Blakely Commentary and News, Blakely in the States, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Tuesday, August 16, 2005

Pondering the next SCOTUS Blakely/Booker case

The recent cert petitions in Blakely cases coming from California and from Tennessee have me thinking hard about exactly which case and exactly what issue will provide the setting for Supreme Court's next foray into the Blakely and Booker thickets.  Notably, my outline in this post of key post-Blakely and post-Booker questions that merit the Supreme Court's attention did not focus on various issues that many state systems are struggling through.  It is fun (but probably foolish) to speculate that the Supreme Court decided to pass on the issue of Booker plain error (basics here, commentary here and here) in order to save its time and energies for cleaning up some of the state Blakely mess it has made.

My SCOTUS pondering has both a descriptive and a normative component: I am wondering which Blakely/Booker case and issue the Supreme Court likely will take up next and also considering which Blakely/Booker case and issue the Supreme Court should take up next.  Ultimately, I still think the validity and scope of the "prior conviction" exception, which the Shepard decision further confused, is the most pressing and important issue needing to be resolved, but lately I am thinking that the High Court may find its way to taking up some other Blakely/Booker issues first.

Perhaps readers might use the comments, which have been fairly quite of late, either to make predictions about the next Blakely/Booker case and issue likely to come before the Supreme Court or to advocate a position concerning which Blakely/Booker case and issue the Supreme Court should take up next.

August 16, 2005 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4) | TrackBack

Tuesday, August 02, 2005

SCOTUS is out of touch

So says Stuart Taylor, Jr. in this interesting piece from The Atlantic Monthly (hat tip Howard).  The main theme of Taylor's piece is captured by its subtitle: "The Supreme Court's greatest failing is not ideological bias — it's the justices' increasingly tenuous grasp of how the real world works."  The piece's opening paragraph spotlights that the current members of the Supreme Court lack experience in many legal and political arenas, and Taylor rights notes, as I have in prior posts, the limited trial court experience and criminal law experience among the current Justices.  Also, Taylor's essay includes this effective paragraph summarizing the mess that SCOTUS has made through its Apprendi-Blakely-Booker sentencing jurisprudence:

In a string of decisions since 2000 the Court has thrown the criminal-justice system into utter confusion by repeatedly changing the rules on the roles of judges and juries in sentencing, while providing minimal guidance on how the new rules should be implemented. In response to the rulings, thousands of current inmates have requested re-sentencing, to the consternation of federal trial and appellate judges, who are all over the lot on how to handle these requests. (The judges also have major differences of opinion on how much weight they should now give sentencing guidelines in new cases.) We'll be hearing more about this confusion — it's a clear recipe for an onslaught of additional appeals down the road, which will further tax our already overburdened criminal-justice system.

UPDATE: A helpful reader pointed me to this interesting column picking up the same themes about the Supreme Court being too cloistered.  The author suggests that Justices be brought "home to the towns where they grew up or worked or raised their families. Let's keep them in our midst so they can live the lives of average Americans and stay close to our hopes and fears and daily struggles."

August 2, 2005 in Blakely Commentary and News, Booker and Fanfan Commentary, Who Sentences | Permalink | Comments (4) | TrackBack

Tuesday, July 19, 2005

Points for creativity?

If ever in these crazy modern times you find yourself nostalgic for ancient common law writs, I have a sentencing case for you.  Today in US v. Holt, No. 04-15848 (11th Cir. July 19, 2005) (available here), the 11th Circuit faced a Blakely claim raised in a writ of audita querela: "Holt argues that a federal court may vacate a criminal conviction or sentence, pursuant to a writ of audita querela, if there is a legal objection that did not exist at the time the judgment was entered."  As the 11th Circuit explains:

Audita querela, Latin for "the complaint having been heard," was an ancient writ used to attack the enforcement of a judgment after it was rendered.  Black's Law Dictionary 126 (7th ed. 1999).  The common law writ was typically employed a judgment debtor in a civil case against the execution of a judgment because of some defense or discharge arising subsequent to the rendition of the judgment or the issue of the execution. The writ of audita querela was abolished, however, in the civil context by the Federal Rules of Civil Procedure.  We have not addressed the writ's continued applicability in the criminal context.

Awarding no points for the defendant's creativity in the invocation of common law writs, the 11th Circuit rejects the defendant's efforts: "We hold that a writ of audita querela may not be granted when relief is cognizable under 28 U.S.C. § 2255, as it is here.  Moreover, construing Holt's motion or writ as one made pursuant to § 2255 we find that he has failed to obtain an order from our court authorizing the district court to entertain Holt's second and successive motion for such relief."

July 19, 2005 in Blakely Commentary and News, Booker and Fanfan Commentary, Booker in the Circuits | Permalink | Comments (2) | TrackBack

Saturday, July 16, 2005

More great sentencing reading, especially for SCOTUS watchers

I am, slowly but surely, working through all the amazing sentencing article in this great Columbia Law Review issue.  But, especially with a Supreme Court vacancy garnering everyone's attention, I want to spotlight another interesting sentencing piece that is on my night-table. 

Professor Richard Myers, in a piece entitled Restoring the Peers in the "Bulwark": Blakely V. Washington and the Court's Jury Project, 83 North Carolina Law Review 1383 (June 2005), explores the reasons why a seemingly unusual coalition of Justices came together to champion jury trial rights in Apprendi and Blakely and Booker.  Here is a snippet from the introduction:

The opinions in these cases reveal that the so-called "centrist" Justices on the current Court have difficulty identifying the right to jury trial — at least as defined by the Blakely majority — as a mainstream value. The unconventional lineup in the Blakely/Booker line of cases confounds the conventional wisdom, as well as the social scientists' models.... These cases, which together have fundamentally altered state and federal structured sentencing guidelines systems, suggest that for some reason, the "centre cannot hold."

The Court's holding in Blakely extends a line of recent cases exploring the meaning of the right to a jury trial and establishes a readily understood principle for deciding what the right means and when it is being eroded. The Blakely line of cases shows that the jury stands at a constitutional crossroads where substantive and structural issues overlap.  The jury right implicates substantive concerns critical to the left, such as innocence, appropriate levels of punishment, and proportionality, as well as structural concerns critical to judicial conservatives, such as separation of powers and democratic theory principles.  This position ensures that the right to a jury trial will endure as a core constitutional value.

The insights developed by Professor Myers reinforce some points I have made here and here and here that a new Justice replacing the "centrist" Justice O'Connor could have an interesting and perhaps unexpected impact on the Supreme Court's still developing sentencing jurisprudence.

In the interest of full disclosure (and also self-promotion), I should note that another passage in Professor Myers' article also garnered my attention.  In the course of noting the academic contributions to the on-going debate over sentencing reform, Professor Myers kindly notes:

Professor Doug Berman's weblog, Sentencing Law and Policy has become the informational locus of the debate, with multiple courts citing it in opinions, and serious scholars of sentencing policy checking it almost daily.  Opinions and other source materials appear there within hours, rendering it the equivalent of a real-time treatise that the participants consult as they shape the debate.

July 16, 2005 in Blakely Commentary and News | Permalink | Comments (1) | TrackBack

Monday, July 11, 2005

All about Apprendi

Though I often talk of Blakely as the earthquake case which shook the foundations of structure sentencing reform, this recent article is a fitting reminder that the Apprendi decision really started the sentencing tremors.  The article takes stock of Apprendi's impact and has this clever opening: "The most influential lawmaker to emerge from South Jersey in recent years arguably has not been a governor, senator or member of the House.  It's a citizen who appealed his sentencing for a crime — Charles C. Apprendi Jr."

Among the interesting tidbits to be found in this article is a claim by Charles Apprendi's defense lawyer that the Apprendi decision has already been cited in nearly 30,000 cases and thus is "the third most-cited case in all of American law, behind only the court's 1973 ruling in Roe vs. Wade, ... and the 1966 case of Miranda v. Arizona."  Also, the article states that Charles Apprendi ultimately served only about 1/3 of his prison term before being released to a halfway house, and that he is now eligible for parole and may "soon may be a free man."

July 11, 2005 in Blakely Commentary and News, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3) | TrackBack

Monday, July 04, 2005

Celebrating liberty, Blakely-style

Us_flag I have plans later today to celebrate liberty by watching a parade and fireworks.  But, showing my true law geek colors, I started today by re-reading Justice Scalia's opinion for the Court in Blakely v. Washington.  Though other recent Supreme Court decisions may also make for good reads on July 4th, I am always inspired by the principles of freedom, democracy and limits on government oppression that I see at the core of Blakely's holding.  As a reminder of how these patriotic values course though Blakely, consider these passages from Justice Scalia's opinion for the Court:

That right [of jury trial] is no mere procedural formality, but a fundamental reservation of power in our constitutional structure.  Just as suffrage ensures the people's ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.

The jury could not function as circuitbreaker in the State's machinery of justice if it were relegated to making a determination that the defendant at some point did something wrong, a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.

There is not one shred of doubt ... about the Framers' paradigm for criminal justice: not the civil-law ideal of administrative perfection, but the common-law ideal of limited state power accomplished by strict division of authority between judge and jury.  As Apprendi held, every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment.

The Framers would not have thought it too much to demand that, before depriving a man of three more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to "the unanimous suffrage of twelve of his equals and neighbours," 4 Blackstone, Commentaries, at 343, rather than a lone employee of the State.

In addition to finding these quotes stirring, these quotes also make me a bit sad in the wake of Booker and some state rulings and legislation that have responded to Blakely by expanding judicial sentencing discretion.  Though there are virtues to enhanced judicial sentencing discretion, that sort of response to Blakely tends to treat the right to a jury trial as a "mere procedural formality" and also diminishes the ability for juries to "function as circuitbreaker in the State's machinery of justice."

July 4, 2005 in Blakely Commentary and News | Permalink | Comments (4) | TrackBack

Friday, July 01, 2005

Resources for those in the Black

The folks at California's First District Appellate Project have previously provided terrific resources here on Blakely, Booker and Shepard. I now see that the FDAP folks are starting to assemble materials to deal with California Supreme Court's big Blakely decision last week in Black (basics here, commentary here and here). 

To begin, at this link you can access a memo authored by Jonathan Soglin entitled "Blakely, Booker, and Black. Now What?"  Here's an account of the memo from its introduction:

This memorandum will provide quick suggestions as to how appellants can procedurally respond to Black in order to preserve Blakely claims. This memorandum will also provide some guidance for triage of cases in order to determine which cases may be best suited for certiorari petitions raising Blakely claims.

July 1, 2005 in Blakely Commentary and News, Blakely in the States | Permalink | Comments (0) | TrackBack

Tuesday, June 28, 2005

Initial end-of-Term reflections on criminal justice and sentencing

Though the blogsphere and the media are still focused principally on Monday's Ten Commandments and file sharing rulings from the Supreme Court, it will soon be time for end of Term reflections.  Indeed, Scripps Howard News Service already has this review of the Term just completed, and I trust we will see more of the same soon from many sources. 

To beat the rush, here are my first-cut anecdotal impressions (biased by my inevitable sentencing focus) of the Supreme Court's criminal justice work this Term: (1) there were a lot of capital and habeas cases, (2) there were relatively few police practices cases, and (3) criminal defendants and prisoners generally did better than I have come to expect.   Notably, if you count Cutter and Medellin and Raich as criminal justice decisions, half of Tom Goldstein's ten biggest rulings of the Term are criminal cases.  However, because I view those cases as examples of the common intersection of federalism and constitutional law in the midst of the criminal justice system, in my mind only Booker and Roper should be remembered as big criminal justice decisions from this past Term.

I believe the limited number of big criminal justice rulings flows directly from Supreme Court's apparent obsession with capital cases (which I have lamented in previous posts here and here and here and here), as well as its constant need to sort out procedurally intricate habeas/AEDPA issues.  Effectively capturing my own frustrations with the Supreme Court's sentencing docket, Mike at Crime & Federalism has these astute and potent comments:

What's up with the Court's granting cert. on so many death cases?  The death penalty is rarely meted out.  If the members of the Court really cared about sentencing, they'd grant cert. on the various Blakely/Booker issues.  If the "liberals" cared so much about justice in sentencing, they'd not have crafted their lame and unprincipled Booker remedial scheme. Sure, "death is different," but death is also rare.  The horrors of prison are real and frequent.  Why not ensure that only those found guilty by a jury of their peers spend time in prison?

UPDATEAlso getting a jump on end-of-Term coverage is Tony Mauro, who has this great piece at Legal Times (which can be accessed by all thanks to  Tony's piece has lots of perspectives on the Court's work this Term, and it closes with a set of great NBA analogies that now have me trying to decide if SCOTUS had a year more like the Spurs or the Pistons.  (Perhaps the High Court's home-town Washington Wizards might be the best comparison, since the Wizards had a pretty exciting and often surprising year.)

NBA/SCOTUS comparisons seem especially apt today.  Tonight is the NBA's draft, and all the buzz over who might soon play in the NBA seems pretty comparable to all the buzz over who might soon be a Justice if there is a retirement announcement.  Perhaps we might even see some NBA general manager, looking for a sleeper pick late in the NBA draft, drawn in by the Draft Prado campaign.

June 28, 2005 in Blakely Commentary and News, Booker and Fanfan Commentary, Death Penalty Reforms, Who Sentences | Permalink | Comments (3) | TrackBack

Friday, June 24, 2005

Happy Birthday, Blakely!

A year ago today, the Supreme Court handed down its decision in Blakely v. Washington.  In my post after first seeing the decision, I commented that "the ramifications of this decision for modern sentencing reforms cannot be overstated," and that there will "be lots and lots more litigation (some of which will surely make its way again to the Supreme Court) about what [Blakely] now means for the operation of structured sentencing systems."  An on-line search this morning provides support for these predictions: running the search "(Blakely or Booker) & sentenc!" after June 24, 2004 in Westlaw's allcases database now produces 5511 "hits" (with 2270 from allstates and 3244 from allfeds).  The same search in Lexis gets interrupted "because it will return more than 3000 results."

So, on its birthday, what do you get for Blakely, the sentencing case that has everything?  Perhaps a debate in the comments about whether the sentencing world is better or worse a year after Blakely.  I vote better in part because Blakely (and Booker) have helped stimulate a long overdue national discussion of sentencing law and policy.  But I would like to hear other perspectives.

June 24, 2005 in Blakely Commentary and News | Permalink | Comments (1) | TrackBack

Sunday, June 19, 2005

Big Supreme Court week ahead

According to the folks at SCOTUSblog, the US Supreme Court will be issuing opinions on both Monday and Thursday this week.  Howard Bashman at How Appealing does a great job here detailing the 17 argued cases still pending, a number of which include habeas issues and a few of which could speak to a range of sentencing issues.

Equally exciting, we may hear on Monday whether SCOTUS will take up Booker plain error in the Rodriguez case.  Since the SG has called for cert. to be granted (details here and also here), I am certainly expecting to hear that the Supreme Court will jump in to resolve the three-way circuit split on this major Booker pipeline issue.

And certainly not to be overlooked, as detailed here, we are supposed to be getting on Monday a decision from the Supreme Court of California in People v. Black, the big state Blakely case argued back in April.  Since Blakely has made a major mess in California for a year now, I am very interested to see how Black tackles Blakely in California.

June 19, 2005 in Blakely Commentary and News | Permalink | Comments (0) | TrackBack

Sunday, June 12, 2005

Blakely/Booker case cites top 5000

With still two weeks until Blakely celebrates its one-year anniversary, a search this morning of "(Blakely or Booker) & sentenc!" after June 24, 2004 in Westlaw's allcases database produces 5036 "hits" (with a breakdown of 2156 in allstates, 2880 in allfeds).  The same search in Lexis, for either the last year or the last six months, gets interrupted "because it will return more than 3000 results."  The search in Lexis for the last month produces 850 hits, suggesting that we may see on-line over 10,000 cases citing Blakely or Booker in 2005. 

Especially given that these numbers do not reflect the tens of thousands of sentencings that Blakely or Booker have impacted which do not result in an on-line opinion, I view this data as providing some support for my hyperbolic claim in this Slate piece last year that "Blakely is the biggest criminal justice decision not just of [the 2003 SCOTUS] term, not just of this decade, not just of the Rehnquist Court, but perhaps in the history of the Supreme Court."  Indeed, as we approach Blakely's one-year anniversary, I encourage readers to suggest in comments other ways to take stock and assess the Blakely year that was.

June 12, 2005 in Blakely Commentary and News, Booker and Fanfan Commentary | Permalink | Comments (4) | TrackBack

Saturday, June 11, 2005

Applying Apprendi to juvenile bind-over

Thanks to a helpful reader, I found this fascinating article from the Dallas Morning News which reports that "State District Judge Manny Alvarez on Friday dismissed a murder indictment against Marco Lopez, 16, saying the court lacked jurisdiction over the case because the teenager was transferred to the adult system without the blessing of a jury." 

I know lawyers have previously claimed that Apprendi might impact judicial fact-finding required for a juvenile transfer to an adult court (where, typically, a much higher maximum sentence is available).  But I have not previously heard of a court actually extending Apprendi to such bindovers.  Indeed, the article states:

In his opposing motion, [Assistant DA] Rogers argued that defense attorneys in other states have unsuccessfully tried to use the same Supreme Court case to influence juvenile transfer cases.  "No other court in the United States has extended Apprendi to this level," Mr. Rogers said.

Interesting stuff, and an issue to follow as this one case is appealed and others are brought with similar claims: "Rogers said he will appeal the ruling [and attorneys involved] in the case said the ruling is likely to spur a flurry of similar motions."

June 11, 2005 in Blakely Commentary and News, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (6) | TrackBack

Wednesday, June 08, 2005

Fantastic Columbia Law Review issue at a discount

In a number of prior posts (e.g., here and here), I have lavished deserved praise on the Columbia Law Review for its recent symposium "Sentencing: What's at Stake for the States?".  The kind folks at CLR were kind enough to send me an advance copy of its May issue with all the articles from the event.  I am truly awed and overwhelmed by all the great sentencing pieces to be found therein.  And today I received this thoughtful note from CLR's editor-in-chief:

I wanted to offer readers of your blog a discounted purchase price on copies of the issue.  Because this issue is about twice the size of our normal issues, we've set the price for the general public at $25 (including shipping and handling), but with the special blog order form [available for download below], readers of your blog can purchase individual copies at $20 a copy using the form.

Though I believe individual articles will eventually be made available on the CLR website, all true sentencing maniacs will want a copy of the full issue for effective beach reading. 

Download clr_sentencing_issue_form.pdf

June 8, 2005 in Blakely Commentary and News, Booker and Fanfan Commentary, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3) | TrackBack

The 2d Circuit's recent Apprendi habeas ruling and distinguishing finding offense facts from making sentencing judgments

The Second Circuit Blog today has this interesting commentary on the Second Circuit's notable ruling late last week concerning Apprendi's applicability to New York's persistent felony offender statute in Brown v. Greiner (basics here).  That commentary laments that "too much has been made of this exceedingly narrow decision," and it correctly emphasizes that the Second Circuit's ruling was applying AEDPA habeas standards and that Brown "is limited to cases that became final before any of the post-Apprendi cases had been decided."

The lengthy critical discussion of Brown at the Second Circuit Blog merits a close read, and it concludes by noting that New York's highest court has a case pending on direct appeal that will require it to address directly whether New York's persistent felony offender statute is constitutionally sound in light of the post-Apprendi decisions in Ring and Blakely

In a future post (and in a future article with the working title "Conceptualizing Booker"), I hope to explain why the ruling in Brown is perhaps not quite as "curious" as the Second Circuit Blog suggests.  Let me preview my idea here and encourage comments from readers: the Second Circuit's decision in Brown, as well as the recent Ohio decisions which find Ohio's sentencing scheme largely dodges Blakely problems, both suggest there is an important constitutional distinction to be drawn between (1) finding offense facts that increase applicable sentences (which is now clearly a task for juries), and (2) making sentencing judgments that increase applicable sentences (which is a task that arguably can still be given to judges). 

This proposed distinction between finding offense facts and making sentencing judgments dovetails somewhat with the offense/offender distinction developed in my Conceptualizing Blakely article, but it is not the exact same idea.  Indeed, the offense/offender distinction cannot fully justify the Booker remedy, since federal judges applying advisory guidelines are still finding offense facts when determining the guidelines advisory ranges.  But, what makes post-Booker sentencing different is that, as a result of the remedy devised by Justice Breyer, federal judges are now plainly required to make sentencing judgments using the 3553(a) factors concerning whether to follow the guidelines. 

Put another way, the Apprendi-Blakely cases can (and perhaps should) be understood to demand only that juries have a role in finding legally essential offense facts, and these cases do not preclude a judges from making broader sentencing judgments based on facts of all sorts.  (This idea also dovetails somewhat, but not perfectly, with the fact/law distinction emphasized by Judge Easterbrook in Carpenter last month.)  Notably, support for this reading of the Apprendi-Blakely cases can be drawn from Justice Scalia's concurring opinion in Ring, where in a final paragraph he asserts that the Ring holding demands "that the jury must find the existence of the fact that an aggravating factor existed," but still allows states to "leave the ultimate life-or-death decision to the judge."

June 8, 2005 in Blakely Commentary and News, Booker and Fanfan Commentary, Offender Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

A Blakely blank spot in sentencing reform principles

As evidenced by this AP story already appearing nationwide, the announcement on Tuesday by The Constitution Project's Sentencing Initiative of this set of "Principles for the Design and Reform of Sentencing Systems" is already generating some press coverage.  Though I have already commented briefly on these principles in this post, I realized this evening that these principles have a Blakely blank spot in that they make no mention whatsoever of incorporating jury decision-making or jury values into the sentencing process. 

The principles do speak to sentencing procedures in point 5, which states:

Meaningful due process protections at sentencing are essential.  Fair notice should be provided and reliable fact finding mechanisms ensured.  Judicial sentencing decisions should be subject to appropriate appellate review.

Relatedly, the principles also criticize the federal sentencing guidelines for placing "excessive emphasis on conduct not centrally related to the offense of conviction."  Nevertheless, as revealed by the reference to "judicial sentencing decisions," the principles suggest a judge-centered vision of sentencing that seems more in harmony with the ideas and themes expressed by Justice Breyer in his Booker remedy opinion than by Justices Scalia and Stevens in their Blakely and Booker opinions.

Though I am generally sympathetic to a judge-centered vision of sentencing, in the wake of Blakely I have come to see a number of potential virtues in incorporating jury decision-making and/or jury values into the sentencing process in some ways.  As detailed more fully in my recent "Conceptualizing Blakely" article, I believe Blakely expresses a fundamental and sound principle that defendants have a right to require the prosecution to prove to a jury all offense conduct for which the state seeks to impose criminal punishment.  I am a bit disappointed that this "Blakely principle" gets no attention in the Sentencing Initiative's initial statement of design principles, though perhaps it will get some play in the forthcoming background report and specific recommendations for a post-Booker federal sentencing scheme.

June 8, 2005 in Blakely Commentary and News, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0) | TrackBack

Saturday, June 04, 2005

1st Circuit addresses Blakely's applicability to revocation of supervised release

This past Friday was a day for interesting (and arguably ground-breaking) Apprendi/Blakely decisions.  In addition to the notable Second Circuit ruling on Apprendi's applicability to New York's persistent felony offender statute in Brown v. Greiner (basics here), Friday also brought from the First Circuit US v. Work, No. 04-2172 (1st Cir. June 3, 2005) (available here), which rules that Blakely is not applicable to judicial determinations in the course of revoking supervised release and ordering a term of imprisonment. 

Work is an interesting ruling for a number of reasons, and it provides useful background on both Blakely and the federal law of supervised release.  Here is the decision's opening paragraph:

In this appeal, defendant-appellant Timothy P. Work argues that the Sixth Amendment, as interpreted in Blakely v. Washington, 124 S. Ct. 2531 (2004), applies to the revocation of supervised release and the consequent imposition of additional prison time. He posits that when such a revocation leads to additional imprisonment above and beyond the top of the original guideline sentencing range, the facts underlying the revocation must be proven to a jury beyond a reasonable doubt.  We conclude that the appellant's argument is doubly flawed: it is premised not only on a misunderstanding of supervised release but also on an attempted importation of Sixth Amendment jury trial rights into an area in which they do not belong.

Among other interesting aspects of the Work court's discussion of these issue is this (debatable?) passage addressing not only the scope of the Sixth Amendment, but also due process concerns and requirements (citations omitted):

The difficulty with the appellant's argument is that this type of judicial factfinding [i.e., finding facts to confirm violation of supervised release conditions] does not pose a Sixth Amendment problem.  The law is clear that once the original sentence has been imposed in a criminal case, further proceedings with respect to that sentence are not subject to Sixth Amendment protections.  To be sure, the conversion of a less restrictive form of punishment, such as supervised release, to a harsher one, such as imprisonment, does entail a deprivation of liberty (albeit conditional liberty).  As such, the accused must be accorded a suitable panoply of due process protections.  The process that is due, however, does not encompass the full sweep of the Sixth Amendment's prophylaxis (such as a right to a jury trial on the facts of the alleged violation). Nor are facts required to be proven beyond a reasonable doubt in such a proceeding.

(First Circuit aficionados get only one guess as to the author of Work and its discussion of "the Sixth Amendment's prophylaxis.")

June 4, 2005 in Blakely Commentary and News, Blakely in Appellate Courts, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2) | TrackBack

Friday, June 03, 2005

Notable 2d Circuit Apprendi ruling on habeas

Thanks to Appellate Law & Practice's post here, I see the Second Circuit in a major habeas ruling involving New York sentencing statutes has put a fascinating and important gloss on Apprendi (and, consequently, Blakely and Booker).  Here is the court's opening paragraph in Brown v. Greiner, No. 03-2242 (2d CIr. June 3, 2005) (available here):

These three appeals, which we have consolidated, present the same question: Were the state court decisions affirming Petitioners' extended sentences under New York's persistent felony offender statute, N.Y. Penal Law § 70.10, "contrary to, or . . . an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"? 28 U.S.C. § 2254(d). The relevant Supreme Court ruling to which the petitions refer is Apprendi v. New Jersey, 530 U.S. 466 (2000), which ruled that in order for a sentence to comply with the dictates of the Sixth Amendment, a factual finding that drives a sentence above the otherwise applicable statutory maximum penalty (other than the fact of a prior conviction) must be found by the jury beyond a reasonable doubt, or be admitted by the defendant.  We hold it was not unreasonable, in light of then-existing Supreme Court precedent, for the state courts to conclude that a sentencing judge's "opinion" as to what type of sentence would "best serve the public interest" is not a factual finding within the meaning of Apprendi.  We accordingly reverse the judgments granting writs of habeas corpus in Brown and Rosen, and affirm the judgment denying the writ in Ramos.

June 3, 2005 in Blakely Commentary and News, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0) | TrackBack

Sunday, May 15, 2005

Reviewing the status of restitution

I have noted in a number of prior posts the growing importance of restitution orders in state and federal courts and the uncertainty of Blakely's applicability to such orders (examples here and here).  Shedding light on this important topic is a note about to be published in the Fordham Law Review that the author, Brian Kleinhaus, has made available for me to post.

This note, which is entitled "Serving Two Masters: Evaluating the Criminal or Civil Nature of the VWPA and MVRA Through the Lens of the Ex Post Facto Clause, the Abatement Doctrine, and the Sixth Amendment," is available for downloading below.  It reviews the history of restitution and the two main federal restitutionary statutes, as well as the application of Blakely/Booker to federal restitution. Here is an excerpt providing highlights:

This Note argues that restitution is, and always has been, an additional method of punishing defendants that also increases society's recognition of the harm done to the individual victim of the crime, and that therefore restitution orders should be universally understood as criminal punishment. The legislative history of the VWPA and MVRA lends significant support to this Note's contention that Congress was aware of, and agreed with, the punitive and compensatory intent of restitution. The recent efforts by some federal courts to separate the underlying principle of restitution as punishment from its co-underlying principle of restitution as compensation have led to judicial decisions that are inconsistent with these original twin aims. Therefore, this Note asserts that restitution should never be separated from its penal, rehabilitative core, even if it also has a compensatory core as well.

Download kleinhaus_note_on_restitution.pdf

May 15, 2005 in Blakely Commentary and News, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing | Permalink | Comments (5) | TrackBack

Wednesday, May 11, 2005

Might Indiana's Supreme Court be a wise leader on the prior conviction exception?

Michael Ausbrook at INCourt has this notable post which details that the Indiana Supreme Court has ordered supplemental briefing in Ryle v. State focused on two questions concerning the scope of the "prior conviction" exception to the Apprendi-Blakely rule.

Ryle seems like an especially good test case for the scope of the "prior conviction" exception for a few reasons: (1) as detailed by Michael and in this post last year, Ryle directly addresses two key issues and uncertainties surrounding the prior conviction exception; (2) because Indiana's legislature has now passed a Blakely fix which makes Indiana's guidelines advisory, the state Supreme Court can consider the legal issues without pragmatic worries that all future sentencings hang in the balance, and (3) the Indiana Supreme Court's work in its big Blakely case, Smylie (basics here, commentary here and here and here) gave me the impression that this court really understands these issues.

Michael reports that oral argument in Ryle is not until next month, and I am not sure about the briefing schedule.  But I will be eager to see what the parties have to say concerning one of the biggest and most important doctrinal issues still lurking in the post-Blakely world.

May 11, 2005 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News, Blakely in the States, Offender Characteristics | Permalink | Comments (0) | TrackBack

Wednesday, May 04, 2005

The waiting is the hardest part...

Over at SCOTUSblog, Tom Goldstein has this fascinating post previewing the Supreme Court's next term; he reports that for the 2005 Term, based on cert. grants this year, the "October sitting (8 arguments) and November sitting (12 arguments) are both full."  This would seem to mean that, unless expedited briefing is scheduled, the earliest that the Supreme Court could hear a Blakely or Booker case is December 2005, and thus we should not expect any clarifying Blakely or Booker decisions until probably at least March 2006.

I have railed in prior posts here and here about the Supreme Court's expenditure of much time and energy on death penalty cases when there are so many post-Blakely and post-Booker questions that are more pressing and of much greater national import.  But rather than continue to curse the SCOTUS darkness, let me try to light a certiorari candle by developing an annotated list, roughly in order of importance, of the Blakely/Booker issues that I think most urgently merit the Supreme Court's attention:

1.  The validity and scope of the "prior conviction" exception.  I spotlighted this issue soon after Blakely (consider this post last August), and the High Court's work in Shepard has only muddied these issues more. 

2.  The retroactive application of Apprendi, Blakely and BookerThough nearly all lower courts have ruled against retroactivity (with the exception of the Colorado decision which found Blakely retroactive to Apprendi), retroactivity issues will be litigated over and over and over again in the lower courts until the Supreme Court definitively rules.

3.  Booker pipelines issues such as plain error.  Unlike retroactivity issues, Booker pipelines issues are producing remarkable circuit splits.  But, also unlike retroactivity issues, Booker pipeline issues will eventually fade away even without a definitive Supreme Court ruling.  This is why I wonder, as I discussed here and here, if the High Court will consider these issues cert. worthy.

4.  Blakely's applicability to restitution and other non-prison sentences.  Taken to its logical extreme, Blakely's statement that "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment" could impact a lot more than sentencing within guideline systems.  Most lower courts are limiting Blakely's reach, but these are the same courts that sought (incorrectly) to limit Apprendi before Blakely came along.

I could go on, but I am already exhausted and I have not even mentioned the reconsideration of the Harris rule for mandatory minimums (which many believe cannot stand in the wake of Blakely).  Also, whether on direct appeal or through habeas actions, at some point SCOTUS will likely need to consider whether and how Blakely applies to some unique state guidelines systems.  And, not to be overlooked, if Congress were to pass a constitutionally questionable Booker fix (such as the proposed HR 1528), a whole new set of constitutional questions in need of urgent resolution could emerge.

May 4, 2005 in Almendarez-Torres and the prior conviction exception, Apprendi / Blakely Retroactivity , Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0) | TrackBack

Tuesday, April 26, 2005

SCOTUS debates (in footnotes) Blakely/Booker pipeline issue

Though the two criminal law decisions decided today by the Supreme Court are surely noteworthy for various other reasons (basics here and here), a bit of sparing in the footnotes of Pasquantino v. US about how to handle a Blakely claim has my attention.  Here is the final footnote of Justice Thomas' opinion for the majority of the Court, which affirmed the defendants' convictions in Pasquantino

Petitioners argue in a footnote that their sentences should be vacated in light of Blakely v. Washington, 542 U. S. ___ (2004).  Brief for Petitioners 26, n. 29.  Petitioners did not raise this claim before the Court of Appeals or in their petition for certiorari.  We therefore decline to address it. See, e.g., Lopez v. Davis, 531 U. S. 230, 244, n. 6 (2001) (declining to address "matter . . . not raised or decided below, or presented in the petition for certiorari"); Whitfield v. United States, 543 U. S. ___ (2005) (affirming federal convictions despite the imposition of sentence enhancements, see Brief for Petitioners therein, O. T. 2004, No. 03–1293, etc., p. 7, n. 6).

Here is the footnote retort on this issue in Justice Ginsburg's dissent:

I note that petitioners' sentences were enhanced on the basis of judicial factfindings, in violation of the Sixth Amendment. See United States v. Booker, 543 U. S. ___, ___ (2005) (STEVENS, J., for the Court) (slip op., at 5-9); see also Blakely v. Washington, 542 U. S. ___ (2004).  Despite the Court's affirmance of their convictions, therefore, the petitioners may be entitled to resentencing. See Booker, 543 U. S., at ___, ___ (BREYER, J., for the Court) (slip op., at 25-26). The Court declines to address the defendants' plea for resentencing, stating that "[p]etitioners did not raise this claim before the Court of Appeals or in their petition for certiorari." See ante, at 21, n. 14. This omission was no fault of the defendants, however, as the petition in this case was filed and granted well before the Court decided Blakely.  Petitioners thus raised Blakely at the earliest possible point: in their merits briefing.  The rule that we do not consider issues not raised in the petition is prudential, not jurisdictional, see Izumi Seimitsu Kogyo Kabushiki Kaisha v. U. S. Philips Corp., 510 U. S. 27, 32-33 (1993) (per curiam), and a remand on the Blakely-Booker question would neither prejudice the Government nor require this Court to delve into complex issues not passed on below.

I guess we should not be surprised to find that the Supreme Court is split on this "pipeline" issue.  Also, these comments provide some interesting tea leaves for lower courts to read concerning (1) how to handle various Blakely-Booker pipeline issues, and (2) whether the Supreme Court may ever grant cert on questions like plain error or other pipeline concerns (prior musing on this issue are here).

April 26, 2005 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1) | TrackBack

Sunday, April 24, 2005

State of state Blakely fixes and high court rulings

With the recent news of legislative Blakely fixes in Indiana (details here) and Washington (details here), as well as the recent state supreme court work in Tennessee (details here, commentary here and here) and Washington (details here), I thought it might be useful to collect in one spot some of the prior posts in which I have reported on major developments in state legislative Blakely fixes and state high court rulings.  So, in alphabetical order, here are some of those prior posts:



Of course, this lengthy list of prior posts tells only part of the state Blakely story.  I know that there have been major Blakely developments in California, Colorado, Ohio, New Mexico, New Jersey and North Carolina, but these developments have not yet, to my knowledge, led to a legislative fix or a state high court ruling.  But, on only the 10-month anniversary of Blakely, it is remarkable to see all the impact Blakely has already had in the states.

April 24, 2005 in Blakely Commentary and News, Blakely in the States, Legislative Reactions to Booker and Blakely, Who Sentences | Permalink | Comments (1) | TrackBack

Friday, April 22, 2005

Morning sentencing stories

Here are just a few of the many sentencing items in the morning papers:

April 22, 2005 in Blakely Commentary and News, Booker and Fanfan Commentary, Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Thursday, April 14, 2005

Another morning of interesting sentencing news

Just like yesterday, this morning's newspapers brings an array of interesting and important sentencing reports:

April 14, 2005 in Blakely Commentary and News, Blakely in the States, Booker and Fanfan Commentary, Death Penalty Reforms, Who Sentences | Permalink | Comments (1) | TrackBack

Sunday, April 10, 2005

The blossoming sentencing literature

I have often jokingly called Blakely "the case which launched a thousand law review articles," and a recent stop at SSRN has confirmed the blossoming of the sentencing literature in the wake of Blakely.  (Of course, this post last month listing many recent sentencing articles also spotlighted that sentencing is now "hot.")

The Columbia Law Review's recent symposium "Sentencing: What's at Stake for the States?" is culminating in a forthcoming issue with a dozen articles that will all be must-reads for academics and others in this field.  I have also seen some other recent articles which further enrich and enhance the scholarly dialogue about sentencing reforms.  Below I have listed and linked some of the articles recently appearing on SSRN and elsewhere that I have added to my (much-too-long) reading list:

April 10, 2005 in Blakely Commentary and News | Permalink | Comments (0) | TrackBack

Saturday, April 09, 2005

Booker and Blakely stories shifting to warp speed

After a remarkable March — with major sentencing developments coming from state and federal courts and legislatures (summarized in posts linked here and here and here and here and here) — I was hoping the sentencing world might slow down in April.  But, as detailed in my Sunday best? post last weekend, April got off to a flying start.  And this past week it seems Booker and Blakely stories have shifted into hyperdrive.  Here are just some highlights from this week:






April 9, 2005 in Blakely Commentary and News, Booker and Fanfan Commentary | Permalink | Comments (2) | TrackBack

Tuesday, April 05, 2005

Almendarez-Torres Episode Two? (aka The Revenge of Shepard)

As stressed in a series of posts last month, the Supreme Court's opaque work in Shepard (basics summarized here, commentary here and here and here) was so intriguing in part because the four Justices who kept the Almendarez-Torres "prior conviction exception" just barely alive in Shepard were the four dissenters in Almendarez-Torres.  But Justice Thomas, who back in 1998 provided the key fifth vote upholding judicial fact-finding of a prior conviction and thus created what is now the "prior conviction exception" to the Jones-Apprendi rule, asserted in Shepard that Almendarez-Torres "has been eroded by this Court's subsequent Sixth Amendment jurisprudence, and ... in an appropriate case, this Court should consider Almendarez-Torres' continuing viability."  (A full explanation of all this is in this post.)

As Lyle Denniston explains in this wonderfully clear report at SCOTUSblog, assistant federal public defender Peter Fleury is now arguing to the Supreme Court that the appropriate case for considering Almendarez-Torres' continuing viability is . . . . . . Almendarez-Torres!  As Lyle explains in his post (which covers all the particulars of Supreme Court procedure), "Fleury has asked the Court to reopen the 1998 decision that is the source of that exception: Almendarez-Torres v. United States (decided March 24, 1998, under docket 96-6839)."  In Lyle's words: "It may be a long shot, but Fleury deemed it worth a try. The Court may consider the petition later this month."

April 5, 2005 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Notable 10th Circuit ruling on prior convictions

Just available on-line today is an interesting decision from the 10th Circuit in US v. Garcia-Rodriguez, No. 04-8047 (10th Cir. Apr. 4, 2005) (available here).  The principal sentencing issue in Garcia-Rodriguez concerns the defendant's efforts to challenge the fact that he had two prior convictions, which served in part as the basis for a life sentence.  The entire decision is an interesting read with Booker and Shepard elements, but the decision seems most notable for its discussion of the scope of the Almendarez-Torres "prior conviction exception" (basics here). 

Here is perhaps the most intriguing paragraph in what is an important decision on various issues relating to the sentencing consideration of prior convictions:

Additionally, this circuit recently concluded that this [prior conviction] exception permits a district court to find facts underlying a prior conviction that are "intimately related" to the whether a prior conviction exists without violating the Sixth Amendment. United States v. Moore, No. 04-8078, __ F.3d __, 2005 WL 668813, at *5 (10th Cir. Mar. 23, 2005) (judge properly made the determination that prior convictions were “violent felonies” subjecting defendant to increased punishment under recidivist statute). [ED. NOTE: Moore is discussed in this post.]  The question of whether the defendant is the same person as the one who committed the prior crimes is just such an "intimately related" inquiry.  See also United States v. Burgin, 388 F.3d 177 (6th Cir. 2004), cert. denied, __ S. Ct. __, 2005 WL 437775 (2005) (subsidiary finding under recidivist statute that prior offenses were committed on "different occasions" need not have been submitted to a jury); United States v. Santiago, 268 F.3d 151, 156 (2d Cir. 2001) (same); United States v. Wilson, 244 F.3d 1208, 1216-17 (10th Cir. 2001) (fact of prior convictions underlying enhancements in 21 U.S.C. § 841(b)(1) need not be made by a jury). No error occurred in this case because this finding of fact need not have been submitted to the jury.

April 5, 2005 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News, Booker and Fanfan Commentary, Booker in the Circuits, Offender Characteristics | Permalink | Comments (0) | TrackBack

Jury sentencing and apologies, Texas-style

This article on the jury sentencing of a defendant for murder from the Texarkana Gazette provides a great reminder that Texas (as well as a few other states) has long had true jury sentencing for certain crimes.   As noted in this post nearly a year ago (before Blakely), Professor Nancy King has done ground-breaking work examining non-capital jury sentencing, which she and her co-author right describe as "one of the least understood procedures in contemporary American criminal justice."

In addition, as the newspaper article details, the sentencing involved an (unaccepted) apology from the defendant, who was convicted of murdering a long-time friend during an intoxicated scuffle:

Barfield took the stand during the punishment phase of his trial and expressed sorrow to Burns' family.  "I wish I was dead. I'm so sorry this has happened," he testified.  Acknowledging he is an alcoholic, Barfield testified that he has been sober since the shooting.  "I have not touched a drink since that tragic night and I never will again. I will never touch a gun the rest of my life," he said....

Burns' ex-wife. Donna Burns, addressed Barfield on behalf of the Burns family after the sentence was handed down.  She told Barfield he has shown no remorse for the killing. "This has all been about Arnold.  You should be ashamed for the position you put your family in. You are the biggest coward in Bowie County," she said....

Burns also told Barfield he will never have her forgiveness for the pain he has caused Burns' son Cody.  She told Barfield birthdays and holidays are spent at the cemetery.  "Knowing you are in your own private hell is some comfort because you put us in ours," she said.

These passages provide a fascinating case-specific perspective on this week's debate between Professors Richard Bierschbach and Michael O'Hear addressing "Will An Apology Save you From Jail?" taking place at the Legal Affairs' Debate Club.  That debate, which I first noted here, is already hashing through a number of important sentencing issues.

April 5, 2005 in Blakely Commentary and News, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0) | TrackBack

Sunday, April 03, 2005

Reconceptualizing sentencing (in draft)

As noted in this post, I had the honor giving the Keynote Address at The University of Chicago Legal Forum's 19th Annual Symposium this past November.  The agenda and details of the event, entitled "Punishment and Crime," can still be found here.


In conjunction with that event, I have completed a draft of an article titled "Reconceptualizing Sentencing," which is slated for publication in the next issue of the University of Chicago Legal Forum.  Though I had initially planned to write a short article making a few points, I fear my draft is now a long article making a few-too-many-points. 

The fine folks at the Legal Forum have now given me permission to post my full draft of "Reconceptualizing Sentencing." It is available for downloading below, and here is the opening:

The transformation of the sentencing enterprise throughout the United States over the past three decades has been remarkable.  The field of sentencing, once rightly accused of being "lawless," is now replete with law.  Legislatures and sentencing commissions have replaced the discretionary indeterminate sentencing systems that had been dominant for nearly a century with an array of structured or guideline systems to govern sentencing decisionmaking.  These modern sentencing developments constitute one of the most dynamic and important law reform stories in recent American legal history — a veritable sentencing revolution.

And yet the modern sentencing era has been marked by a failure to reconceptualize modern sentencing.  The new sentencing laws, the Supreme Court's sentencing jurisprudence, and even the scholarly literature in the field, are all conceptually underdeveloped.  The basic story of the sentencing revolution, especially in the federal system, has been frequently recounted, but the theories, structures and procedures of modern sentencing decisionmaking have not been deeply examined. 

Against this backdrop, it is not all that surprising that the Supreme Court's blockbuster rulings in Blakely v. Washington and United States v. Booker have generated puzzled reactions and some impassioned criticisms, even though the decisions reflect certain fundamentally sound conceptual principles.  The drama that has surrounded the Blakely and Booker decisions — and their aftermath — ultimately reflects a collective failure to reconceptualize sentencing in the wake of the sentencing revolution.  It also makes more urgent the task of reconceptualizing modern sentencing.

Download reconceptualizing_sentencing_draft_for_clf_32405.doc

April 3, 2005 in Blakely Commentary and News, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0) | TrackBack