Monday, June 14, 2010

SCOTUS confirmation that the prior conviction excpetion to Apprendi is here to stay

Sentencing and clemency guru Margaret Colgate Love wrote me today to suggest that the biggest sentencing news coming from all today's SCOTUS action (basics here) is to be found in the immigraion case Carachuri-Rosendo v. Holder (available here).  In Carachuri-Rosendo, the Justices ruled that "that second or subsequent simple possession offenses are not aggravated felonies [requiring deportation] under §1101(a)(43) when, as in this case, the state conviction is not based on the fact of a prior conviction." And here is what Margaret Colgate Love had to say about why this is a notable ruling for sentencing fans:

Biggest news this morning on sentencing front is in Carachuri-Rosendo [because the] Court unanimously backs away from constitutionalizing recidivist sentencing. It reaffirms Almendarez-Torres, both on 5th and 6th A grounds and nobody says a word in defense of overruling it. Thomas concurred apparently just to let us know rather gracefully, by not mentioning A-T, that he has given up hope of Court overruling it.  (It seems that all the hype in circuits about A-T being on life support was just that.)

The Court also said that notice of intention to charge priors under 851 was not constitutionally compelled. Stevens was all business, no prose more purple than "counterintuitive and unorthodox." Though 851 has no constitutional underpinning, it is a way to limit recidivist enhancements in drug cases.  As to other types of enhancements, I thought his note 12 was very significant for ACCA and other gun recidivist enhancements, in requiring that prior must appear as part of the judgment or formal charging document (a fairly substantial expansion/clarification of Shepard).

June 14, 2010 in Almendarez-Torres and the prior conviction exception, Blakely in the Supreme Court, Offender Characteristics, Who Sentences | Permalink | Comments (11) | TrackBack

Wednesday, April 28, 2010

Is anyone still preserving Apprendi/Blakely challenges to judge-determined restitution awards?

Thanks to the Supreme Court deciding only civil cases this week, I have finally found time to read the argument transcript from last week's SCOTUS oral argument in Dolan v. US (which is available at this link).  There are lots of interested aspect of the Dolan transcript ranging from frequent discussion of what is a final sentence to the potential impact of the 3553(a)'s requirement that district judges consider the need for restitution. 

But one particular line from the start of one of Justice Scalia's questions to the Government prompts my question in the title of this post.  Specifically, on page 31 of the Dolan transcript, Justice Scalia starts a line of questioning by saying "I think it's bad enough to have the issue of whether this victim suffered $100,000 damages decided by the judge...."  In addition, on pages 51-52 of the Dolan transcript Justice Scalia suggest with another line of questions that he is troubled by the fact that "it's the judge who finds that the victim suffered so much money" and that the judge does not use a beyond a reasonable doubt standard when making this finding.

In other words, it appears that Justice Scalia remains quite concerned that the constitutional requirements imposed on sentencing determinations in Apprendi and Blakely are not being applied with respect to the fact-finding involved in the setting of criminal restitution awards.  Thus, despite the fact that every circuit has rejected arguments to apply Apprendi and Blakely to restitution awards, there is at least one Justice (and perhaps there are more) who might be eager to give some new life to these kinds of claims.

I fear that few defendants even try to preserve Apprendi/Blakelychallenges to judge-determined restitution awards since these claims never got any real traction in lower courts after Blakely.  But the Dolan transcript suggests that perhaps these claims ought still be preserved and pressed all the way up to the Justices.

April 28, 2010 in Blakely Commentary and News, Blakely in the Supreme Court, Criminal Sentences Alternatives, Procedure and Proof at Sentencing | Permalink | Comments (9) | TrackBack

Wednesday, February 24, 2010

Oral argument transcript finally available for in O'Brien/Burgess case

I am pleased to finally be able to report that the Supreme Court now has posted here the transcript for Tuesday morning's oral argument in United States v. O'Brien and Burgess, the combined cases concerning the application of the machine-gun mandatory minimum sentencing enhancement of 18 U.S.C. § 924(c).  I have heard from multiple source that Blakely fans will want to give this a close read, and that's my plan as I jump on a plane this afternoon to head to Miami (more on that later).  I hope to have comments on the argument in a future post, but I hope readers do not wait for me to opine on this argument's merits (or demerits).

Some recent related posts:

February 24, 2010 in Blakely Commentary and News, Blakely in the Supreme Court, Mandatory minimum sentencing statutes | Permalink | Comments (7) | TrackBack

Monday, February 22, 2010

Might the Harris limit on Apprendi be questioned in O'Brien/Burgess argument?

As detailed in this post at SCOTUSblog, on Tuesday morning the Supreme Court will hear oral argument in United States v. O'Brien and Burgess, a combined pair of cases concerning the application of the machine-gun mandatory minimum sentencing enhancement of 18 U.S.C. § 924(c).  As regular readers may recall from posts here and here back when cert was granted in these cases, the Apprendi Sixth Amendment line of cases (and especially the Harris mandatory minimum exception) may be in play and at issue in these case.

After reviewing the merits briefs in O'Brien and Burgess (which are available here thanks to the ABA), my gut tells me that the Justices will be drawn to ruling for the defendants on statutory interpretation grounds, which will allow the Court to dodge all the tough constitutional questions that a ruling for the government could present.  But my gut instinct about a lot of SCOTUS sentencing issues is rarely spot-on, and I suspect that the validity of Harris might come up during Tuesday's oral argument even if the majority of Justices are inclined to resolve O'Brien and Burgess on statutory interpretation grounds.

For those eager to gear up for the O'Brien and Burgess argument by giving thought to the possibility of overruling the Harris mandatory minimum exception to the Apprendi Sixth Amendment rule, I recommend the amicus brief filed by NYU Center for the Administration of Criminal Law (with which I helped a bit). That brief makes a serious argument for now doing away with Harris mandatory minimum exception to the application of the Apprendi doctrine.

February 22, 2010 in Blakely in the Supreme Court, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (10) | TrackBack

Monday, October 19, 2009

Are Apprendi and Blakely Justice Stevens' most favorite opinions?

This morning's USA Today includes this lovely front-page articleby Joan Biskupic about Justice Stevens. The piece, which is headlined "Supreme Court's Stevens keeps cards close to robe; Long-serving justice, 89, a force behind the scenes," is a must-read for all SCOTUS fans.  But sentencing fans might take particular note of this line reporting on what Justice Stevens' said during Biskupic's recent interview:

On opinions he finds noteworthy, he cited cases in which he crafted a narrow majority to enhance the role of juries in criminal sentencing.

Of course, the cases referenced here have to be his own 2000 Apprendi decision and the 2004 Blakely decision (which was authored by Justice Scalia, of course).  

The fact that Justice Stevens would make special mention of Apprendi and Blakely in this recent interview leads me to two questions, one backward looking and one forward looking: (1) if Justice Stevens remains proud of his work in Apprendi andBlakely, just why did he end up providing the key fifth vote to limit the reach of this jurisprudence in last Term's Ice case?, and (2) in light of his apparent affinity for Apprendi and Blakely, might Justice Stevens work extra hard this Term (which likely will be his final Term) to reverse the Harris mandatory minimum exception to Apprendi?

Some related recent posts:

October 19, 2009 in Blakely Commentary and News, Blakely in the Supreme Court, Who Sentences | Permalink | Comments (13) | TrackBack

Friday, October 02, 2009

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:

October 2, 2009 in Apprendi / Blakely Retroactivity , Blakely in the Supreme Court, Booker and Fanfan Commentary, Sentences Reconsidered, Who Sentences | Permalink | Comments (6) | TrackBack

Thursday, October 01, 2009

Might Apprendi be at risk with O'Brien cert grant?

In this post concerning the Supreme Court's grant of cert this week in US v. O'Brien, I reprinted the thoughtful notion by Kevin Reitz that the Harris mandatory minimum limit on the Apprendi might be subject to reversal in O'Brien.  But one commentor in that thread suggested that maybe the spirit might be moving the other way:

[T]he question presented in O'Brienis extremely broad.  So broad, I fear, that it could conceivably accommodate the overruling of Apprendi itself -- accommodate eliminating the constitutional distinction between elements and sentencing factors.

I have yet to see anyone raise this possibility: that Roberts, Kennedy, Breyer, and Alito voted to hear O'Brienbecause they are hoping to get Sotomayor on board the plane out of Apprendi-land.

This is somewhat fanciful and paranoid speculation, to be sure. But let's not forget Citizens United. I think overruling Apprendi is no less likely an outcome than overruling Harris.

Wow, that is some wild fanciful and paranoid speculation, especially given that Chief Justice Roberts seem to have some affinity for Apprendi-land as evidenced by his votes in Cunningham and Ice.  In addition, I would be very surprised to see the Solicitor General or anyone else actively advocate overruling Apprendi anytime soon.  Moreover, Justice Stevens has said that he would like to see Harris overruled, and so I think he will likely be working harder this (last?) term to extend Apprendi and will not take kindly to any move to undo his efforts there.

That all said, all these comments usefully highlight is the unsteady and uncertain status of all aspects of the entire Apprendi-Blakely-Booker jurisprudence, and O'Brien may thus be especially important for giving us an update on all the current Justices' take on this crazy-mixed-up Sixth Amendment stuff.

October 1, 2009 in Blakely in the States, Blakely in the Supreme Court, Mandatory minimum sentencing statutes | Permalink | Comments (4) | TrackBack

Wednesday, September 30, 2009

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

Professor Kevin Reitz sent me this tantalizing e-mail in response to te Supreme Court's cert grant today in O'Brien (basics here):

U.S. v. O’Brien gives the Court the chance to reconsider Harris v. U.S., 536 U.S. 545 (2002), which held that the Apprendi rule doesn’t attach to factfinding at sentencing that triggers a mandatory minimum sentence without increasing the available maximum penalty.  It would certainly be big news if the Court were to overrule Harris.  The Solicitor General’s office doesn’t expect this to happen (otherwise they wouldn’t have filed for cert).  Counting votes, however, it’s hard to call. 

Three dissenters in Harris remain on the Court: Stevens, Thomas, and Ginsburg.   Breyer’s concurring vote in Harris was wobbly — the rationale was that he could not “yet accept” the Apprendi rule.  If “yet” has now arrived, we may have four votes to overrule Harris.   Roberts, Alito, and Sotomayor are not clearly on record.  Sotomayor might well be a 5th vote?  

Stare decisis counts for something here.  Harris reaffirmed an earlier case against a fully-developed Apprendi challenge, so a 180-degree turn in O’Brien would be dramatic.  Still, from a policy view, once Apprendi and Blakely and Booker are the law, it would be nice to eliminate Harris’s mandatory minimum end-run around those cases.

September 30, 2009 in Blakely in the Supreme Court, Mandatory minimum sentencing statutes | Permalink | Comments (19) | TrackBack

Wednesday, January 14, 2009

Why did Justice Stevens, the author of Apprendi, vote to Ice Sixth Amendment jury rights?

There are lots of interesting and surprising aspects to the Supreme Court's Ice ruling today, ranging from the absence of opinions from Justices Breyer and Alito (the two Justices with the most criminal justice history) to the willingness of Chief Justice Roberts to join Justice Scalia's forceful dissent.  But the biggest surprise, in my view, is the vote of Justice Stevens to reject the application (or should I say extension?) of the Apprendi-Blakely principle in the consecutive sentencing setting. 

Justice Ginsburg, as evidenced by her vote for the Booker remedy, long ago showed her concerns about taking the logic and consequences of Apprendi-Blakely too far.  But Justice Stevens had never before shown any squishiness or squeamishness about giving full effect to the Sixth Amendment jury trial rights he championed in his Apprendi and Booker opinions for the Court.  But, with Ice presenting an important opportunity to continue the "Apprendi revolution" that Justice Stevens helped start, he joins an opinion that reflects, as Justice Scalia notes, many of the arguments of the Apprendi-Blakely dissenters.

Especially notable in this context is this (gratuitous?) paragraph of important dicta in the majority opinion in Ice:

Further, it is unclear how many other state initiatives would fall under Ice’s proposed expansion of Apprendi.   As 17 States have observed in an amici brief supporting Oregon, States currently permit judges to make a varietyof sentencing determinations other than the length ofincarceration.  Trial judges often find facts about the nature of the offense or the character of the defendant in determining, for example, the length of supervised release following service of a prison sentence; required attendanceat drug rehabilitation programs or terms of community service; and the imposition of statutorily prescribed fines and orders of restitution.  See Brief for State of Indiana et al. as Amici Curiae 11.  Intruding Apprendi’s rule into these decisions on sentencing choices or accoutrements surely would cut the rule loose from its moorings.

This paragraph goes a long way to ensuring that the Sixth Amendment rights championed in the Apprendi-Blakely line of cases are not going to avail many defendants in other sentencing settings in which judges have been given broad authority to conduct fact-finding to increase sentences.  I am especially surprised that Justice Stevens was willing to allow all this this anti-Apprendi dicta carry the day in Ice.

January 14, 2009 in Blakely in the Supreme Court | Permalink | Comments (2) | TrackBack

Some choice quotes from the two opinions in Oregon v. Ice

For reasons I will explain in future posts, the Supreme Court's work today in the Apprendi-Blakely Sixth Amendment case of Oregon v. Ice (basics here) is fascinating, surprising and ultimately disappointing.  Before I get to hard-core commentary, however, it is useful to pull out the key quotes from the two opinions.

Let's start with the majority opinion, authored by Justice Ginsburg:

The question here presented concerns a sentencing function in which the jury traditionally played no part: When a defendant has been tried and convicted of multiple offenses, each involving discrete sentencing prescriptions, does the Sixth Amendment mandate jury determination of any fact declared necessary to the imposition of consecutive, in lieu of con-current, sentences?...

[T]win considerations — historical practice and respect for state sovereignty — counsel against extending Apprendi’s rule to the imposition of sentences for discrete crimes....

[L]egislative reforms regarding the imposition of multiple sentences do not implicate the core concerns that prompted our decision in Apprendi.   There is no encroachment here by the judge upon facts historically found by the jury, nor any threat to the jury’s domain as a bulwark at trial between the State and the accused....

States’ interest in the development of their penal systems, and their historic dominion in this area, also counsel against the extension of Apprendi that Ice requests....

Members of this Court have warned against “wooden, unyielding insistence on expanding the Apprendi doctrine far beyond its necessary boundaries.”  Cunningham, 549 U. S., at 295 (Kennedy, J., dissenting). The jury-trial right is best honored through a “principled rationale” that applies the rule of the Apprendi cases “within the central sphere of their concern.” 549 U. S., at 295. Our disposition today — upholding an Oregon statute that assigns to judges a decision that has not traditionally belonged to the jury — is faithful to that aim.

Now let's hear from the dissent, per Justice Scalia:

The rule of Apprendi v. New Jersey, 530 U. S. 466 (2000), is clear:  Any fact — other than that of a prior conviction — that increases the maximum punishment towhich a defendant may be sentenced must be admitted bythe defendant or proved beyond a reasonable doubt to a jury. Oregon’s sentencing scheme allows judges ratherthan juries to find the facts necessary to commit defendants to longer prison sentences, and thus directly contradicts what we held eight years ago and have reaffirmed several times since.  The Court’s justification of Oregon’s scheme is a virtual copy of the dissents in those cases....

We have taken pains to reject artificial limitations upon the facts subject to the jury-trial guarantee....

The decision to impose consecutive sentences alters the single consequence most important to convicted noncapital defendants: their date of release from prison.  For many defendants, the difference between consecutive and concurrent sentences is more important than a jury verdict of innocence on any single count: Two consecutive 10-year sentences are in most circumstances a more severe punishment than any number of concurrent 10-year sentences.

To support its distinction-without-a-difference, the Court puts forward the same (the very same) arguments regarding the history of sentencing that were rejected by Apprendi....

The Court’s reliance upon a distinction without a difference,and its repeated exhumation of arguments dead and buried by prior cases, seems to me the epitome of the opposite [of a "principled rationale" for applying Apprendi].  Today’s opinion muddies the waters, and gives cause to doubt whether the Court is willing to stand by Apprendi’s interpretation of the Sixth Amendment’s jury-trial guarantee.

UPDATE:  On the topic of choice quotes, the post by Kent at C&C about this case has the best turn of phrase to describe the holding: "Apprendi Sprawl Frozen in Ice."

January 14, 2009 in Blakely in the Supreme Court | Permalink | Comments (17) | TrackBack

Fascinating SCOTUS split in rejecting Blakely's application to consecutive sentencing

The Supreme Court has today handed down its latest Blakely ruling with its decision in Oregon v. Ice.  Here is the early report from SCOTUSblog:

The Court has released the opinion in Oregon v. Ice (07-901), on whether judges may impose consecutive sentences based on facts neither found by the jury nor admitted by the defendant. The ruling below, which found for the defendant, is reversed and remanded. Justice Ginsburg wrote the majority opinion. Justice Scalia wrote a dissenting opinion, joined by the Chief Justice and Justices Souter and Thomas. The ruling is now available here.

The break down of the Justices in the 5-4 ruling is fascinating, and I am sure I will have a lot more to say about the Court's efforts here in future posts.

I suppose I need to start my commentary, however, by taking back this recent comment that the Supreme Court is most pro-defendant appellate court in the nation on sentencing issues.  But, of course, proving again that Blakely issues make for strange voting block, three supposedly liberal Justices (Breyer, Ginsburg and Stevens) are the key to the defendant's loss in Ice.

January 14, 2009 in Blakely in the Supreme Court | Permalink | Comments (16) | TrackBack

Wednesday, October 15, 2008

Two very different takes on Ice

Two top-notch court watchers have two very different perspectives on what yesterday's oral argument in Oregon v. Ice might mean for the future of the Apprendi/Blakely line of Sixth Amendment cases.  Lyle Denniston, in this long post at SCOTUSblog, starts his summary of the Ice argument this way:

With Justice Stephen G. Breyer waging, seemingly alone, a rear-guard effort to limit juries' fact-finding role in determining criminal sentences, the Supreme Court on Tuesday displayed a strong inclination to stay on course in the eight-year effort to add to the jury’s power.

In sharp contrast, Kent Scheidegger, in this long post at Crime and Consequences, ends his post with this radically different assessment:

This looks pretty good for the state.  Justices Stevens and Ginsburg, both essential votes for the extension of Apprendi in Booker, seem to be reluctant to extend it this far.

My first read of the Ice transcript led me toward Lyle's assessment, but I have long given up making serious predictions about anything concerning what the Justices are going to be doing in the Apprendi/Blakely line of constitutional rulings.  However, the fact that the traditional left/right divide does not hold in this Sixth Amendment setting perhaps explains why the Court's efforts even at oral argument are hard to assess (and also explain why I find this jurisprudence so interesting).

Some related Ice posts:

October 15, 2008 in Blakely in the Supreme Court | Permalink | Comments (1) | TrackBack

Tuesday, October 14, 2008

Ice oral argument transcript now available

I have not yet had a chance to review the Ice oral argument transcript, but it is now available at this link.  As explained in this preview post, the Ice case has the potential to heat up or cool down lower court debates over the reach of Blakely and the limits of judicial fact-finding at sentencing.

I plan to post later on anything really significant that jumps out from the oral argument transcript.  In the meantime, readers are encouraged to use the comments to give their views on whether the Ice argument proved to be hot or cold.

UPDATE:  After a quick read of the transcript, I was surprised and somewhat disappointed that the jurisprudential discussion of Apprendi and Blakely has not become more advanced and sophisticated even a full decade into this modern Sixth Amendment debate. That said, I was surprised and somewhat pleased to see pro-Sixth Amendment instincts expressed by nearly every member of the Cunningham six during the Ice argument (though Justice Thomas remained his usual quiet self).

For a variety of reasons, I have been fearful that the six Justices who continued to champion Sixth Amendment principles in the Cunningham decision dealing with California's sentencing system (who are the five Justices in the Apprendi/Blakely majorities plus Chief Justice Roberts) are not eager to keep the modern Sixth Amendment sentencing revolution marching forward.  But the transcript of the Ice argument suggested to me that Justice Breyer, who has always opposed the Apprendi/Blakely line of cases, may be the only Justice deeply and seriously concerned about the possible consequences of continued commitment to the principles of this line of cases. 

I had expected that Justices Alito and Kennedy, who were part of the dissenting block in Cunningham, would be vocal in articulating concerns about the arguments put forward by the defendant in Ice.  But Justice Alito was surprisingly quiet during argument — I do not think he asked a single question — and Justice Kennedy did not reveal any deep continuing hostility to Apprendi principles.  I am now starting to wonder if every member of the current Court, save Justice Breyer, is ready to have their ticket stamped to Apprendi-land.  If so, and especially if Ice ruling ends up reflecting this new reality in bold terms, it could end up being a sleeper case this Term.

October 14, 2008 in Blakely in the Supreme Court | Permalink | Comments (8) | TrackBack

Monday, October 13, 2008

The little Ice case that could (but probably won't)...

Enginebe a major Sixth Amendment ruling.  As detailed here at SCOTUSblog, Tuesday afternoon the Supreme Court will hear argument in Oregon v. Ice, which explores whether the Apprendi/Blakely rule limiting judicial fact-finding at sentencing extends to determinations required under state law for the imposition of consecutive sentences.  I did a preview of this case for the ABA, which can be downloaded below.  Here is a snippet of my analysis from that preview:

Continued uncertainty about what the current Justices now think about the Sixth Amendment rule championed in Apprendi and Blakely increases the uncertainty over whether the Court’s decision in Ice will be bold and significant.  If a group of five or more Justices remains eager to limit certain judicial fact-finding at sentencing, the Court could produce a broad and consequential decision that not only favors the defendant, but also suggests that lower courts should be applying the Sixth Amendment in an array of new sentencing settings.  Conversely, if a group of five or more Justices is now eager to remove remaining constitutional uncertainty about what Blakely means for various forms of judicial fact-finding at sentencing, the Court could produce a broad and consequential decision that not only favors the state but also suggests that lower courts should not be too concerned about Sixth Amendment rights in various sentencing settings.

Tellingly, the Supreme Court has not taken up many post-Blakely issues in recent years, even though lower courts have frequently turned back arguments by defendants and defense counsels to apply and expand Blakely’s reach in a variety of new sentencing settings.  This reality perhaps suggests that the Court may be more inclined to limit than to expand the reach of Blakely in this case....

Because Chief Justice Roberts has publicly suggested he favors narrow constitutional rulings that produce more consensus than dissension within the Court, one might expect a relatively narrow ruling in Ice garnering the votes of most or all Justices.  The specific consecutive/concurrent sentencing issue in Ice could be resolved on relatively narrow grounds without requiring the Court to significantly expand or significantly limit the reach of the Sixth Amendment.  But, then again, one hallmark of the Apprendi and Blakely line of cases has been unpredictability.  Ice could be a sleeper case if a group of Justices prove eager to use the opinion in this case as an opportunity to champion again the importance of the jury in modern criminal justice settings.

Download aba_preview_of_ice.pdf

October 13, 2008 in Blakely in the Supreme Court | Permalink | Comments (9) | TrackBack

Monday, March 17, 2008

More on the cool Ice grant and consecutive sentencing Blakely issue

In the weeks and months ahead, I will surely blog a lot about the many interesting aspects of the consecutive sentencing Blakely issue that SCOTUS has now taken up in the new Ice case from Oregon (basics here).  For now, i will be content to link to this post at SCOTUSblog which has all the Ice cert papers and also to some of my prior posts on this issue.  (I must note that, when posting here about the Oregon Supreme Court decision last October, I commented that "the case might be viewed as quite cert worthy if Oregon decides to appeal Ice to the US Supreme Court."

A few prior posts on Apprendi/Blakely and consecutive sentencing (with post date):

March 17, 2008 in Blakely in the Supreme Court | Permalink | Comments (0) | TrackBack

SCOTUS taking up Apprendi/Blakely consecutive sentencing issue

I am pleased to report that this morning the Supreme Court has announced that it is taking up another important Apprendi/Blakely issue.  From today's SCOTUS order list (which also includes a few Gall and Kimbrough remands), here is the basic story:


The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted limited to the following question: Whether the Sixth Amendment, as construed in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), requires that facts (other than prior convictions) necessary to imposing consecutive sentences be found by the jury or admitted by the defendant.

Sing it with me, Blakely fans: Ice, Ice Baby.  Here's a bit of fractured lyrics sampling from the original to celebrate the SCOTUS litigation occasion:

Yo, Justices, Let's kick it!

Ice Ice Baby, Ice Ice Baby

All right stop, Collaborate and listen
Ice is back with a new Blakely invention
Sentencing grabs a hold of me tightly
Flow like a Justice daily and nightly
Will it ever stop? Yo I don't know...

If there is a problem, Yo, we'll solve it
Check out the issue while Berman revolves it

Ice Ice Baby Vanilla, Ice Ice Baby Apprendi
Ice Ice Baby Vanilla, Ice Ice Baby Apprendi

March 17, 2008 in Blakely in the Supreme Court | Permalink | Comments (1) | TrackBack

Monday, October 01, 2007

Bumming over cert denied

Though I am still looking forward to a big SCOTUS sentencing term, I am definitely bumming that at the top of today's huge list of cert denials is Faulks v. US.  Faulks is the case from the Fourth Circuit concerning the procedures for revoking supervised release in which I helped develop a petition raising Blakely issues (details here and here).

When time permits, I hope to flag some other notable cert denials, though perhaps reads can help by mentioning other denials of sentencing interest in the comments.  Ultimately, the Faulks denial is another reminder that, even with all the sentencing action this term, there are no shortage of additional (Blakely and non-Blakely) issues that I wish the Justices would tackle ASAP.

UPDATE:  In the comments, Peter G. rightly note the notable absence of Rita GVR's.  Here's Peter's reaction to this Rita dog not barking: "I infer that the Court is washing its hands (and modeling to the courts of appeals to wash their collective hands) of 'substantive unreasonableness' challenges to post-Booker Guidelines and below-Guidelines sentences."

Also in the comments is a query about the status of "Jeff Fisher's ACCA/juvenile adjudication case out of Washington."  I believe that case was Sasouvong v. Washington (discussed here), and it also suffered the one-line fate of "cert denied."

October 1, 2007 in Blakely in the Supreme Court | Permalink | Comments (5) | TrackBack

Wednesday, August 01, 2007

Top-side briefs in Gall and Kimbrough

All the briefs on the petitioners/defendants' side of the two pending SCOTUS reasonableness cases, Gall v. United States and Kimbrough v. United States, were filed last week. I believe all of these briefs can be accessed at this page created on the New York Council of Defense Lawyers ("NYCDL") website.  (In addition, Paul Rashkind has assembled a lot of the briefs here, and I believe they will also appeal on this defender website eventually.)

I have only so far had a chance to read some of the briefs (in part because I was helping with this NYCDL brief in Gall).  There appears to be a lot of interesting and important post-Rita work being done in these briefs, and readers are encouraged to spotlight particular efforts and passages they consider especially notable.  I hope to find time after the bottom-side briefs are filed to comment on what the Justices might think about what they are being told.

UPDATE:  I have been told that briefs on the defender website are available here for Gall and here for Kimbrough.

August 1, 2007 in Blakely in the Supreme Court, Claiborne and Rita reasonableness case, Gall reasonableness case, Kimbrough reasonableness case, Rita reactions | Permalink | Comments (2) | TrackBack

Tuesday, May 29, 2007

A cold SCOTUS sentencing start to a hot summer

Memorial Day marks the unofficial start of summer, and it should be a hot one for sentencing fans with the still pending Claiborne and Rita cases, the upcoming Libby sentencing and congressional hearings all in the works.  But, as detailed here at SCOTUSblog, the Justices got back to work after the long weekend without much for sentencing fans to get excited about. 

The Justices issued only one opinion today (a labor law issue producing another 5-4 partisan split).  And the set of cert grants, except for a case with what seems like a little federal prisoner rights issue, have little of interest for criminal justice folks.

Significantly, the Justices denied cert today in Washington v. VanDelft, a state case that raised effectively whether Blakely applies to judicial factfinding supporting the imposition of consecutive rather than concurrent sentences.  I am inclined to guess that the Justices are a bit tired of Blakely issues as they sort through Claiborne and Rita.  (I am hoping, however, that the Justices are interested in judicial factfinding again when my supervised release case, discussed here and here, comes up for review in a few weeks.)

UPDATE:  Kent at Crime & Consequences here notes the VanDelft denial and also details that these sort of Blakely issues are up before the California Supreme COurt in the wake of Cunningham.

May 29, 2007 in Blakely in the Supreme Court | Permalink | Comments (2) | TrackBack

Wednesday, May 23, 2007

Will SCOTUS grant cert on Blakely consecutive sentencing issue?

The latest "Conference Call" column in Legal Times is entitled "Supreme Court Asked to Clear Up Sentencing Muddle."   The column highlights a case raising an important Blakely issues that the Justices are scheduled to consider this week.  Here are the highlights:

By setting constitutional limits on a judge's discretion to sentence, [Apprendi and Blakely] called into serious question the sentencing schemes of the federal government and of dozens of states.  In its private conference Thursday, the Supreme Court will consider whether to hear a case -- Washington v. VanDelft, No. 06-1081 -- that presents yet another wrinkle in the ever-evolving field of sentencing jurisprudence.

The question in VanDelft is whether the decision to impose consecutive rather than concurrent sentences is one that a judge can make, or whether, instead, it is a question that Apprendi and Blakely repose in the jury. 

The issue is a significant one because the imposition of consecutive rather than concurrent sentences can have a substantial effect on a defendant's overall time of incarceration....

The defendant in VanDelft, William VanDelft, received multiple convictions in state court for various attempts to abduct young boys for sex.  Two of those convictions were for attempted first-degree kidnapping; a third was for attempted second-degree kidnapping.  Washington state sentencing law stated that the sentences for first-degree kidnapping "shall be served consecutively to each other."  By contrast, sentences for second-degree kidnapping "shall be served concurrently."  Importantly, though, the law goes on to state that consecutive sentences can be imposed in exceptional circumstances....

The [Washington Supreme Court] noted that Washington sentencing law contained a "statutory presumption of concurrent sentencing" for VanDelft's second-degree kidnapping conviction, and that this "presumption" served as the relevant statutory maximum under Apprendi and Blakely.  The trial judge unconstitutionally exceeded this maximum, the court held, when he nevertheless imposed a consecutive sentence on VanDelft based on a separate finding that a concurrent sentence would be "too lenient."

May 23, 2007 in Blakely in the Supreme Court | Permalink | Comments (4) | TrackBack

Sunday, May 20, 2007

Continued pitch for cert on an important Blakely issue

As detailed in this post, I am part of a team seeking cert in Faulks v. US, a case from the Fourth Circuit concerning the procedures for revoking supervised release.  Our initial petition is here, and earlier this month the government filed its brief in opposition (BIO).  A few days ago, we filed our reply to the government's BIO.  These latest filings can be accessed here:

Download faulks_bio_from_government.pdf

Download final_faulks_reply.pdf

Though I am partial, I am genuinely convinced that the issues we have raised in Faulks need the Supreme Court's attention ASAP.  If the Justices in the Blakely five (or the Cunningham six) are genuinely committed to its articulated Sixth Amendment doctrines and principles, the judge-centered procedures employed in federal supervised release revocation proceedings ought to be cause for significant constitutional concern (especially in a case with extreme facts like Faulks). 

As has been well documented in the SCOTUSblog stats, SCOTUS needs to grant cert in a bunch of new cases to fill its fall argument calender.  And the Court has not taken up any new Blakely issues in a while (although, of course, Claiborne and Rita might address Sixth Amendment issues).  I am hopeful we have a real shot with Faulks.

May 20, 2007 in Blakely Commentary and News, Blakely in the Supreme Court, Reentry and community supervision, Who Sentences | Permalink | Comments (1) | 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

Friday, February 17, 2006

Mark your SCOTUS calenders

As detailed over at SCOTUSblog, the (new) Supreme Court is back in action with some orders about argued cases.  But we have to wait until Tuesday for news about what SCOTUS may do with the state Blakely cases conferenced today (speculations here). 

Also Wednesday of next week brings SCOTUS oral argument in two notable criminal cases:

Anyone want to guess whether Justice Alito — the first former federal prosecutor to serve as a Justice and the first prosecutor on the High Court since Earl Warren — will be an active questioner in these cases? I will make the bold prediction that Justice Alito will ask at least as many questions as Justice Thomas.

February 17, 2006 in Blakely in the States, Blakely in the Supreme Court, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2) | 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

Monday, October 17, 2005

O Recuenco, Recuenco, wherefore art thou granted Recuenco?

The Supreme Court's cert. grant in Washington v. Recuenco has me in a Shakespearian mood as I try to figure out exactly why the Court decided its next foray into Apprendi-land should involve the intricate issue of whether Blakely errors can be subject to harmless-error analysis under Neder v. US, 527 U.S. 1 (1999) (available here) or instead qualify as structural errors under Sullivan v. Louisiana, 508 U.S. 275 (1993) (available here).  The easy answer to why Recuenco, I suppose, is that the lower courts have split on this question, with most courts applying harmless-error analysis, but a few state supreme courts concluding that Blakely errors are structural.  And, since Washington has taken the structural error approach (along with North Carolina and maybe New Jersey), one might also speculate that at least four Justices think the Washington Supreme Court is wrong on the merits and this issue needs to be cleaned up.

But the decision to grant cert in Recuenco is not that simple and the case has intricacies that may entail another complicated and opaque chapter in the Apprendi-Blakely saga.  First, as commentor DEJ notes here, this Blakely harmless/structural error issue could have a profound impact on the Booker plain error story (and some may even claim that Booker itself indirectly resolved this issue).  Second, Washington's statutory law and the exact posture of this case on appeal suggests that Recuenco is not the ideal vehicle for sorting through these harmless/structural error issues.  Third, given the current SCOTUS sentencing head-count on Apprendi-Blakely issues, as well as Justice Scalia's vocal advocacy against Sixth Amendment harmless-error analysis and the presence of new Justices, all bets are off concerning the ultimate outcome in Recuenco.

To close with more of the Bard, I am now worried that the disposition of Recuenco might come to resemble a SCOTUS tale along the lines of A Midsummer Night's Dream or Twelfth Night.

October 17, 2005 in Blakely in the Supreme Court | Permalink | Comments (7) | TrackBack

Thursday, September 08, 2005

Cert. pool filling up with Blakely cases

In posts here and here, I have explored whether John Roberts might impact the Supreme Court's agenda even more than its jurisprudence.  (Of course, I am focused on this issue in part because there are so many post-Blakely and post-Booker questions that I think merit the Supreme Court's attention and in part because I hope not to have to keep kvetching again and again about the Court's grants of cert. in so many death penalty cases.)

Providing a fitting follow-up to my recent reflections on the Supreme Court's likely next foray into the Blakely/Booker thicket, I see from fellow bloggers that the SCOTUS cert. pool is continuing to fill up with cases raising Blakely issues:

September 8, 2005 in Blakely in the Supreme Court | Permalink | Comments (0) | 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

Sunday, July 10, 2005

States of Blakely excitement

I have now had a chance to read quickly all of the important Blakely opinions handed down by the Arizona Supreme Court on Friday (basics here).  Though the particulars are of greatest interest to folks in Arizona, the rulings reveal yet again how much important Blakely work is being done in the state courts and reinforce my belief, expressed in this post, that the dynamic realities of Blakely in the states might truly be the most interesting sentencing story of the past year.

If you get as excited as I do about Blakely in the states, not to be missed is next month's 2005 Conference of the National Association of Sentencing Commissions, which is taking place in Washington DC on August 7-9.  The Conference is fittingly entitled "The Continuing Evolution of Sentencing," and as detailed in this schedule, there will be lots of state Blakely discussion throughout the conference (as well as some federal Booker talk, too).  You can register for this exciting conference via this link.

And, to help everyone catch up on the most recent developments, below I have linked to some recent state Blakely posts:

July 10, 2005 in Blakely in the States, Blakely in the Supreme Court, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0) | TrackBack

Thursday, June 16, 2005

SG asks for cert. in 6th Circuit plain error case

I received today, and provide for download below, a copy of the cert. petition that the Solicitor General has filed in US v. Barnett, the Sixth Circuit case that established a loose plain error standard which has led to many Booker remands in that circuit.  Here is the SG's assertion of reasons for granting the petition in Barnett:

The questions presented in this case concern the application of the plain-error rule, Fed. R. Crim. P. 52(b), to sentences imposed under a mandatory application of the Guidelines before this Court's decision in Booker. Essentially the same questions are presented in Rodriguez v. United States, No. 04-1148 (filed Feb. 23, 2005). The United States has filed a brief in Rodriguez acquiescing in certiorari in light of the multi-circuit conflict on the proper analysis of plain Booker error.

In this case, with respect to the third prong of the plain-error standard, the Sixth Circuit concluded that imposition of a sentence on the premise that the Guidelines are mandatory is presumptively prejudicial. The court did not require, as several other circuits do, that a defendant carry his burden to show prejudice by establishing a reasonable probability that the district court would have imposed a lower sentence if it had treated the Guidelines as advisory. With respect to the fourth prong, the court concluded that the fact that the law had changed since a defendant’s sentencing is sufficient to establish that the error affected the fairness, integrity, and public reputation of judicial proceedings, without any inquiry into whether the sentence that was imposed was itself unjust or unreasonable. Both of the Sixth Circuit's conclusions conflict with decisions of other courts of appeals, as detailed in the government’s brief in Rodriguez.

This case does not involve a constitutional sentencing error under the Booker merits holding, while Rodriguez does involve such an error. While some courts of appeals have drawn a distinction in the plain-error analysis to be applied to constitutional and nonconstitutional Booker error, the two scenarios involve fundamentally similar considerations, and this Court’s disposition of Rodriguez is thus likely to affect the correct resolution of this case. Accordingly, the petition for a writ of certiorari should be held pending the Court's disposition of Rodriguez.

Download barnett_sg_cert_petition.pdf

June 16, 2005 in Blakely in the Supreme Court, Booker and Fanfan Commentary, Booker in the Circuits, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0) | TrackBack

Thursday, May 26, 2005

Follow-up SCOTUS filing on plain error

As detailed here, late last week the Solicitor General in Rodriguez v. US, the big plain error decision coming from the Eleventh Circuit, urged the Supreme Court to grant cert on the Booker plain error issue.  Rounding out the (non-)debate over whether SCOTUS should take up this issue, the lawyers representing Rodriguez today filed a cert reply brief in the Supreme Court.  That brief, which can be downloaded below, has this introduction:

The Government acknowledges the need for certiorari in this case, and offers three compelling reasons in support of that conclusion: (1) "There is a clear and deep multi-circuit conflict on the proper analysis of plain Booker error"; (2) the eleven circuits to address the issue "have adopted three different broad approaches, with further variations within each broad category"; and (3) "[s]ome of the differences among the courts of appeals illuminate basic disagreements about the proper approach to plain-error review" that will potentially recur in other contexts.

These critical points advanced by the Government merit elaboration beyond what the Government has said. First, although the circuit split at issue applies principally to cases in which the sentences were imposed before Booker, that category comprises massive numbers of cases; indeed, this Court alone has granted, vacated, and remanded more than 700 cases in light of Booker, almost all of which are likely to present plain-error issues.  Second, allowing vast differences in the treatment of similarly situated defendants based solely on the Circuit in which sentencing occurs is repugnant to the Sentencing Reform Act's central goal of eliminating such disparities.  Third, the divergent court of appeals decisions reflect basic and significant disagreements concerning plain-error analysis that are certain to recur in this and other contexts, including differences over what constitutes a "reasonable probability" of a different result and over whether a court of appeals may delegate the task of assessing that probability to the district court.

Download rodriguez_scotus_reply.pdf

May 26, 2005 in Blakely in the Supreme Court, Booker and Fanfan Commentary, Booker in the Circuits, Sentences Reconsidered, Who Sentences | Permalink | Comments (0) | TrackBack

Monday, May 23, 2005

A win for one capital defendant, an interesting DIG, and more Booker GVRs

As so well covered over at SCOTUSblog, part of this busy morning at the Supreme Court included a victory for a capital defendant in Deck v. Missouri (04-5293), where the Court ruled, 7-2, that "it is unconstitutional to require an individual, appearing before a jury for a possible death sentence, to be restrained by shackles and handcuffs throughout the proceeding."  The lengthy Deck opinion can now be accessed at this link.

And, in an interesting development in another capital case, the Court also dismissed Medellin v. Dretke (04-5928) as "improvidently granted."  Medellin, you will recall, was to address the impact of rulings by the World Court on respecting consular rights in context of US death penalty cases.  The lengthy Medellin opinion can now be accessed here.

And, continuing a Monday morning tradition, the Supreme Court's also issued some more Booker-inspired GVRs, although I count only 8 this morning on this order list.

May 23, 2005 in Blakely in the Supreme Court, Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Friday, May 13, 2005

Notable developments in Supreme Courts

With the help of the always helpful blogsphere, I see some notable Supreme Court developments on sentencing issues:

May 13, 2005 in Blakely in the States, Blakely in the Supreme Court, Booker and Fanfan Commentary, Death Penalty Reforms | 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

Monday, April 25, 2005

The same ole story from SCOTUS

As we all now know, Monday morning with the Supreme Court in session means more Booker-inspired GVRs.  This morning I count three dozen such GVRs on this order list, which emboldens me to restate my prediction in this post that we could have over 1000 such orders before this Term is finished.  (Previous GVRs can be tracked down through this post.)

In addition, as reported in this post from SCOTUSblog, the Supreme Court continued today its preoccupation (fetishism?) with capital sentencing procedures through a cert grant in Oregon v. Guzek (docket 04-928), which concerns "a convicted individual's attempt to bring into a death sentencing hearing evidence that would cast doubt on the conviction."  As well explained at  SCOTUSblog, Guzek "seeks clarification of the Supreme Court's 1988 ruling in Franklin v. Lynaugh" and also "could have an impact on the coming sentencing hearing of admitted terrorist Zacarias Moussaoui."

Though Guzek seems like a cert-worthy case, this grant reinforces my recent observations in this post about how much time and energy the Supreme Court is spending on death penalty litigation these days.  (I am growing fond of labeling these developments a "legal culture of death" at the Supreme Court.)  I believe Guzek is the second capital cases in which cert has been granted for the 2005 Term, even though there are (in my view) many post-Blakely and post-Booker legal questions concerning non-capital sentencing procedures that are far more pressing and of much greater national import.

Meanwhile, as reported here by CrimProf and in fuller posts at SCOTUSblog here and here, the Supreme Court is hearing arguments today on two (complicated) non-capital criminal cases which both have issues that could impact sentencing law and practice.  As the Supreme Court term winds down over the next two months, I will be watching closely not only whether we get cert grants on any Blakely and Booker issues for next Term, but also whether some of the coming decisions this Term have any important or notable dicta that might impact post-Blakely and post-Booker litigation in lower courts.

UPDATE: This AP account of today's SCOTUS argument in Halbert v. Michigan suggests that sentencing is a big part of the case's back-story.  The Halbert case will thus be high on my watch list as the Term winds down.

April 25, 2005 in Blakely in the Supreme Court, Booker and Fanfan Commentary, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0) | TrackBack

Monday, April 18, 2005

The Booker GVRs are back

After a two week break, the Supreme Court is back in business today.  And, as has become its custom over the last three months, Mondays at the High Court now start with an order list that includes a bunch of Booker-inspired GVRs.  This morning I count nearly 30 such GVRs, and now I am thinking we might have over 1000 such orders before this term is finished.  (Previous GVRs can be tracked down through this post.)

Also, as reported here by SCOTUSblog, the Supreme Court today "refused to reopen the 1998 decision in Almendarez-Torres [as it] denied a motion to file a petition for rehearing" in that case.  (That petition was previously discussed here.)  Thus, it appears some other case will be needed to satisy Justice Thomas' desire for the to "consider Almendarez-Torres' continuing viability."

April 18, 2005 in Blakely in the Supreme Court, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0) | TrackBack

Tuesday, March 22, 2005

Pondering the state Blakely pipeline

Picking up on my post here about all the Booker-inspired GVRs, Michael Ausbrook at INCourts notes here that he can only find one Blakely-inspired GVR (the Dilts case from Oregon).  That interesting discovery has me thinking more broadly about the pace and pattern of sentencing litigation in the state courts and about when and how the Supreme Court will consider state Blakely issues on the merits .

First, it is interesting that, nearly nine months since Blakely, less than half of the states struggling with major Blakely issues have had their state supreme courts weigh in.  My own notes show major Blakely rulings from state supreme courts only in Arizona (Brown), Indiana (Smylie), Minnesota (Shattuck), and Oregon (Dilts), and these rulings often punted as many issues as they resolved.   Meanwhile, we are still awaiting serious high court Blakely input in California, Colorado, New Jersey, New Mexico, North Carolina, Ohio and Tennessee.

Second, it bears noting that there are some broad and common Blakely issues of concern to many states (e.g., Blakely's applicability to consecutive sentencing), and a number of narrow and unique Blakely issues of concern only to particular states (e.g., Blakely's applicability to Ohio's "worst form of the offense" enhancement).  Also, there are a range of Blakely remedy/pipeline issues that implicate constitutional provisions like double jeopardy and due process.  Whether, when and how the Supreme Court will take up these "second-generation" Blakely issues from the states should be an interesting story for many years to come.

March 22, 2005 in Blakely Commentary and News, Blakely in the States, Blakely in the Supreme Court, Booker and Fanfan Commentary, State Sentencing Guidelines | Permalink | Comments (10) | TrackBack

Monday, March 07, 2005

Summarizing Shepard (and seeking state insights)

The Supreme Court's opaque work today in Shepard v. US (basics here) is hard to fully comprehend (consider this comment).  Consequently, let me spotlight again the basic summary of the case here from the SCOTUSblog and summarize below my recent Shepard posts:

I am making such a big deal over Shepard and the possible demise of the Almendarez-Torres "prior conviction exception" in part because many states — including many without guideline structures — have sentencing laws (such as three-strikes laws) that rely on judges finding prior conviction facts.  In the wake of Booker and its "advisory dodge," the Almendarez-Torres "prior conviction exception" may seem like a very minor issue for the federal system.  But because every state, I believe, has some sort of mandatory recidivist or three-strikes law, the overall impact of the demise of the Almendarez-Torres could be, dare I say, perhaps even greater than Blakely.

Of course, if the Harris mandatory minimum exception to the Jones-Apprendi-Blakely rule remains standing (a big IF), some judicial fact-finding at sentencing will still be permissible even if (when?) the Almendarez-Torres "prior conviction exception" is eliminated.  But my own sense of state sentence laws is that the demise of the Almendarez-Torres could be hugely important.  But I may lack any real perspective, and thus I would be grateful if those folks most familiar with state sentencing systems might use the comments to explain the possible impact if the Almendarez-Torres "prior conviction exception" was formally eliminated.

UPDATE: Jonathan Soglin at Criminal Appeal here contributes a number of important insights about Shepard and also details its likely immediate impact on People v. McGee, no. S123474, a California Supreme Court case concerning the applications of California's Three Strikes Law.

March 7, 2005 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, State Sentencing Guidelines | Permalink | Comments (3) | TrackBack

Still more SCOTUS GVRs

In what is becoming a weekly tradition, this morning we get a bunch more Booker-inspired GVRs from the Supreme Court (previous examples are here and here and here).  The SCOTUS order with this morning's 20-odd Booker-remanded cases is available at this link (where one can also see that we now also have some Roper-inspired GVRs).

March 7, 2005 in Blakely in the Supreme Court, Booker and Fanfan Commentary, Death Penalty Reforms, Who Sentences | Permalink | Comments (1) | TrackBack

Wednesday, January 12, 2005

SCOTUS speaks: Booker and Fanfan have arrived!!

Not a moment too soon, we finally have an opinion in Booker and Fanfan!! All I know is that it is long and messy, but it appears Blakely applies to the federal guidelines, with Justices Stevens and Breyer both writing parts of the Court's opinion.  More soon!

UPDATE: Lyle Denniston at SCOTUSblog has key language from the opinions here, and I hope to have links to the full opinions within the hour.

Here are the links: As promised, here is the link to Justice Stevens' partial opinion for the Court, here is the link to Justice Breyer's partial opinion for the Court, here is the link to a partial dissent by Justice Scalia, here is the link to Justice Thomas' partial dissent, here is the link to Justice Breyers' partial dissent, and here is the link to Justice Stevens' partial dissent.  And here is a link to the whole messy ball of wax, including the 6 page syllabus.

I will need some time to digest all 6 opinions (6 opinions!!), which run 118 total pages (118 pages!!).  But I should have lots and lots of commentary to follow throughout the day.  In the meantime, I hope readers will use the comments to share their views on whether the opinion was worth the wait.

The essence of the holdings: From Stevens' opinion:

We hold that both courts correctly concluded that the Sixth Amendment as construed in Blakely does apply to the Sentencing Guidelines. In a separate opinion authored by JUSTICE BREYER, the Court concludes that in light of this holding, two provisions of the Sentencing Reform Act of 1984 (SRA) that have the effect of making the Guidelines mandatory must be invalidated in order to allow the statute to operate in a manner consistent with congressional intent.

January 12, 2005 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (41) | TrackBack

Lucky seven?

By my count, today marks the seventh time this term the Supreme Court has plans to release opinions in argued cases.  Will seven be the lucky number for Booker and Fanfan?  Of course, yesterday I made this bold prediction that we will see Roper and not Booker and Fanfan today.  Given my prediction track-record, this means anything else is likely to happen.

In any event, you may be now know the pre-Booker drill.  Let me list here some of the recent pre-Booker "gearing up" posts:

Also, additional posts of note and background materials on Blakely and Booker and Fanfan are at my Blakely Basics page, and still more information can be accessed through the Booker/Fanfan and Blakely page links in the right side-bar.

January 12, 2005 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Tuesday, January 11, 2005

A bold (and silly?) prediction

As noted previously, tomorrow the Supreme Court will hand down one or more decisions, but then, after tomorrow, the following Tuesday or Wednesday (Jan. 18 or 19) seem to be the next earliest possible decision days.  Just for fun, I am going to predict now that tomorrow we won't see Booker and Fanfan, but we will see a decision in Roper v. Simmons, the juvenile death penalty case that has both sentencing and international law significance (background here and here).

I make this prediction in part because, as noted by SCOTUSBlog and Law Dork, Justices Scalia and Breyer have plans later this week to have "A Conversation on the Relevance of Foreign Law for American Constitutional Adjudication" at American University.  (All the details on the event and a link for live viewing are here.)  I think the Justices' conversation would be enhanced by the release of Roper before the event.  (This is, of course, just silly speculation of the kind that used to get me in trouble with this (now defunct?) blog.)

That all said, applying Murphy's Law, I should probably predict we will get Booker and Fanfan tomorrow because a decision tomorrow could put a big wrinkle in the workshop I am scheduled to do later this week at the UNC School of Law.

January 11, 2005 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Death Penalty Reforms, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2) | TrackBack

Another SCOTUS case to deal with (collateral) Blakely concerns?

A crackerjack reader has brought to my attention the fact that, in the Supreme Court's grant of cert. last week in Halbert v. Michigan, 03-10198 (available here), the second question presented could be of significance in the post-Blakely world.  Here is the question in full form:

Is Petitioner entitled to resentencing, where counsel failed to render effective assistance by not objecting to improper scoring under Michigan's sentencing guidelines which resulted in Petitioner receiving a considerably longer sentence?

Though, obviously, this question does not directly confront Blakely issues, any further elaboration on the meaning and application of ineffective assistance in the context of (noncapital) sentencing representation could be of great import in the wake of Blakely.  The Supreme Court's discussion of these matters in Glover v United States, 531 US 198 (2001), set out only the most basic of considerations.

(And yet, as suggested by Jonathan Soglin at Criminal Appeal in this post, it is not clear that the ineffectiveness question in Halbert v. Michigan is of real concern to the High Court.  As detailed by SCOTUSblog in this post, the Court clearly took Halbert to address "the constitutionality of a Michigan procedure that denies a free lawyer to aid an individual who has pleaded guilty but who wants to seek a discretionary appeal in a higher court."   The Court sought to confront that issue earlier this Term in Kowalski v. Judicial Circuit Court (03-407), but a standing problem got in its way.)

January 11, 2005 in Blakely Commentary and News, Blakely in the Supreme Court, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2) | TrackBack

More waiting: still no Booker and Fanfan

According to Lyle Denniston at SCOTUS Blog here, today is another no-show for Booker and Fanfan.  We may have only one more day to wait, since opinions are also due to be released tomorrow, but now I am starting to think the Supreme Court is enjoying teasing all of us.

January 11, 2005 in Blakely in the Supreme Court | Permalink | Comments (30) | TrackBack

Predicting the unpredictable

Despite my prior false predictions of the coming of Booker and Fanfan, there is now some historical precedent for thinking the decision is imminent.  The last major challenge to the federal guidelines' constitutionality in Mistretta v. US was argued on October 5, 1988 and decided January 18, 1989.  So, even if we do not get Booker and Fanfan today or tomorrow, history suggests the decision should be coming soon.

Rather than make bold predictions, I will simply note that, in addition to Booker and Fanfan, it is possible we will see this week opinions in Roper v. Simmons, the juvenile death penalty case, and in Shepard v. US, the criminal history case.  Then again, it is also possible we are due for more waiting.

While we wait, here is a list of a few recent "gearing up" posts:

Additonal posts of note and other background materials on Blakely and Booker and Fanfan can also be found on my Blakely Basics page.  And a wealth of additional information can be accessed through the various Booker/Fanfan and Blakely page links in the right side-bar.

January 11, 2005 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Death Penalty Reforms, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (2) | TrackBack

Monday, January 10, 2005

Is it finally the big week?

I now have heard from three sources that the Supreme Court has announced that it will be issuing decisions on both Tuesday and Wednesday of this week.  Thus, it is time, yet again, to strike up the (false?) alarm for the possible arrival of Booker and Fanfan.  (I realize my predictions are now even less credible than the wolf-crying boy's, but that won't stop me from saying, yet again, that we may be only days away from the start of the next era of sentencing reform.)

I have already done many, many posts anticipating Booker/Fanfan posts, some of which can be found here and here.  However, since the last possible Booker sighting, a number of more recent posts have spotlight relevant recent developments.  Thus, as we gear up yet again, here are a few more posts I am planning to review tonight:

In addition, I think everyone contemplating the future of federal sentencing law and policy should give considerable attention to (1) The Sentencing Project's most recent 3-page report entitled "The Federal Prison Population: A Statistical Analysis," and (2) the important comments by Republican Senators about emphasizing rehabilitation coming from the Gonzales hearing last week.

January 10, 2005 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

Tuesday, January 04, 2005

Justice Breyer on the Blakely front lines (sort of)

With thanks to How Appealing for the tip, I found this AP article reporting on Justice Breyer's recent experience in Massachusetts state court with jury duty amusing.  Though Justice Breyer apparently did not get seated on a jury, he was quoted as saying: "It proves that everyone can participate, and in a democracy that is important."  Given Professor Bill Stuntz's interesting suggestion that the Blakely decision seems to be trying to make the criminal justice system more democratic (discussed here), perhaps this quote is a sign that Justice Breyer is now on the Blakely bandwagon.

January 4, 2005 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Who Sentences | Permalink | Comments (0) | TrackBack

Could Booker/Fanfan impact the Chief Justice sweepstakes?

The blogsphere continues to buzz about possible replacements for Chief Justice Rehnquist, and of late the talk has been a lot about Justice Thomas.  Some of the interesting posts are collected  at SCOTUSblog here and this week's Legal Affairs Debate Club asks "Should Clarence Thomas be Chief Justice?"

Of course, consistent with my "Blakely gets no respect" commentary (details here and here), none of this talk notes Justice Thomas' interesting role and opinions in the Blakely line of precedents.  Justice Thomas became the key fifth vote in Apprendi (after a contrary vote two years earlier in Almendarez-Torres), and his opinions in both Apprendi and for the dissenters in Harris are remarkable in many ways.  If, as some have speculated, Justice Thomas is writing the opinion in Booker and Fanfan to strike down the federal sentencing guidelines, it is fun to speculate how such a headline-making ruling might impact the public and political dialogues about the next Chief.

January 4, 2005 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Who Sentences | Permalink | Comments (1) | TrackBack

Tuesday, December 28, 2004

The WSJ on the federal Blakely mess

In my Sentencing Year in Review, I praised the media's recent coverage of sentencing issues, and the Fourth Estate is doing me especially proud this week.  To go with a powerful NY Times editorial and great Wash. Post pardon coverage, this morning brings another great article from Laurie Cohen at the Wall Street Journal.  (A collection of the WSJ articles covering the federal sentencing system could now make a great sentencing reader, with just some of the prior great articles here and here and here and here.)

Today's front-page WSJ piece (available here by subscription) is entitled "Double Standard -- In Wake of Ruling, Disarray Plagues Federal Sentencing" and documents the nationwide mess made by Blakely:

Disarray has enveloped the federal court system for the past six months since a Supreme Court ruling hinted that the guidelines governing federal sentences may be unconstitutional. As federal judges wait, and wait some more, for the divided high court to deliver a final verdict, they have come up with a myriad of ways to sentence defendants.

The article does an especially effective job detailing the Blakely story from a variety of angles by quoting many federal judges and litigants from various parts of the country.  Here's one example of the insightful anecdotes in the piece:

In Sioux Falls, S.D., Chief Judge Lawrence L. Piersol says he is asking juries to find drug quantities and that is "simple for them." But financial fraud cases are another matter. Judge John C. Coughenour, chief judge of the Western District of Washington, yesterday completed an eight-week trial involving 87 counts of tax evasion and other fraud. The jurors came back with guilty verdicts against six defendants. "It's not going to be a simple task for a jury to conclude how much the tax loss was," says Judge Coughenour.

P1ac335a_sentence12272004204708The article also provides thoughtful review of the different views of Blakely waivers, and it has a cool looking map detailing the current circuit variations on what Blakely means for the federal sentencing system while we "wait, and wait some more, for the divided high court to deliver a final verdict."  (I have detailed the particulars of the circuit variation in this post.) 

The article not only details the mess that is federal sentencing now, but it highlights for me how hard the "clean-up" is going to be for lower federal courts next year no matter what the Supreme Court says in Booker and Fanfan.  And I am already looking forward to the WSJ's coverage of that future story.

December 28, 2004 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Wednesday, December 22, 2004

New resources from The Sentencing Project

I just noticed that The Sentencing Project, a non-profit organization which does terrific research and advocacy work on a range of criminal justice issues, has on its website new resources on Blakely and on the scope of imprisonment.

On a page appropriately titled "Awaiting the Supreme Court," Executive Director Malcolm Young provides extensive background on Blakely and the pending Booker and Fanfan.  This discussion of the cases also effectively integrates (and links to) other important recent sentencing reform developments.

And a document entitled "New Prison Figures: Rising Population Despite Falling Crime Rates" provides an effective and compelling summary of the latest prison data released by the Bureau of Justice Statistics last month (discussed here).  The document also discusses nationwide sentencing developments and has an amazing final graph of different countries' incarcertaion rates (which shows that the US rate of incarceration is more than 5 times China's, more than 10 times Japan's and more than 20 times India's rate of incarceration).

December 22, 2004 in Blakely Commentary and News, Blakely in Legislatures, Blakely in the Supreme Court, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (4) | TrackBack