Sentencing Law and Policy Web Log

October 2, 2004 through November 14, 2004

November 14, 2004 1

Still more state Blakely rulings of note 1

The decline of death? 1

Responding to Blakely in North Carolina 2

November 13, 2004 2

The joy of footnotes 2

The waiting game continues 3

Calling all sociologists 3

Noteworthy news from the midwest 4

November 12, 2004 4

Off to Chicago with interesting briefcase readings 4

The Blakely costs and court crisis 5

November 11, 2004 5

Fascinating death penalty development in Ohio 5

University of Chicago Legal Forum symposium 6

Blakely delays, deals and dodges 6

AG nominee Gonzales and sentencing issues 7

What might come of "plain error" rulings and other affirmances? 8

November 10, 2004 9

Today's SCOTUS death penalty case 9

Apprendi, Blakely and federalism 9

The next US Attorney General 10

Discussing Blakely in Indiana 10

Lots of morning sentencing news 11

November 9, 2004 11

Nationwide Blakely developments in the states 11

AG Ashcroft resigns 12

Enron sentencing jury is back 12

Death is not so different 13

Considering Justices through the criminal justice lens 13

Lots to do while we wait 14

Not yet for Booker and Fanfan 14

Booker and Fanfan pre-reading guide 15

Friends in high places 15

The power of positive thinking? 16

SCOTUS makes news by not deciding 16

November 8, 2004 17

In a New York state of mind 17

Can sentencing jurors get the blue flu? 17

Federal response to Blakely/Booker 17

Not so fast? 18

Tomorrow's the big day? 19

Over 2 million prisoners and counting 19

November 7, 2004 20

Imagining a "Sentencing Judges Hall of Fame" 20

Sentencing in the Sunday news 21

Tracking Blakely in the states 21

November 6, 2004 22

Continued Prop. 66 post-game analysis 22

More affirmances despite Blakely in the First Circuit 22

Fascinating Blakely reports on Enron trial 23

November 5, 2004 24

More events and weekend reading around the blogsphere 24

More noteworthy state Blakely developments 24

Upcoming sentencing conferences 25

Further narrowing of Blakely's reach in the states 25

November 4, 2004 26

The next chapter for California's Three Strikes? 26

Experiences with juries doing sentencing factfinding 27

Pondering a post-Ashcroft DOJ 27

One month and counting... 28

After Proposition 66's defeat 28

November 3, 2004 29

More election/sentencing news of note 29

Judge Panner sentences in Detwiler 29

The power of Gov. Schwarzenegger? 30

One last race to follow and early election thoughts 30

November 2, 2004 31

More notable Blakely cases from Minnesota 31

SCOTUS examining broad questions through a sentencing lens 32

Three Strikes meets Blakely/Apprendi 32

Blakely Ohio legal news 33

Debating disenfranchisement 34

November 1, 2004 34

Developments around the blogsphere 34

Blakely triple play from the First Circuit 34

Good enough for Blakely purposes 35

A week's worth of Blakely news stories 35

Felony disenfranchisement in the swing states 36

Blakely analysis and insights for ALI's sentencing project 36

The new phone books — I mean guidelines — are here! 37

No Booker/Fanfan (or CJ Rehnquist) today 37

October 31, 2004 38

Conceptualizing Blakely (again) 38

A focus on the franchise 38

A November to remember 39

For still more on Blakely 39

October 30, 2004 40

Has Prop. 66 been terminated? 40

Keys to avoiding Blakely in the Keystone state 40

The Ninth Circuit's nimble Blakely dodge 41

The (incomplete) innocence revolution 41

October 29, 2004 42

More on Blakely-ized indictments and retroactivity 42

The intricacies of Blakely in Ohio 43

Coming insights from the OACDL 43

The most overloaded branch 43

October 28, 2004 44

Careful retroactivity analysis from WD of Virginia 44

Indicting up Gotti 44

California hits triple digits! 45

October 27, 2004 46

The Blakely earthquake hits Arizona 46

Roper v. Simmons oral argument transcript now on-line 47

October 26, 2004 47

Coping with Blakely 47

Business as usual at the USSC? 48

Administering Blakely 48

The full Blakely in Washington state 49

California's messy Blakely landslide 49

Another academic view on Blakely 50

The vagaries and vagueness of hate crime sentencing 50

October 25, 2004 51

The state of state sentencing in Ohio 51

The seamless web of Blakely 51

As if we need more drama 52

October 24, 2004 52

Living with Blakely and Ameline 53

Blakely, mandatory minimums and the safety valve 53

October 23, 2004 54

How striking 54

October 22, 2004 54

Sing, sing a song 54

Light weekend reading 55

Arizona effort to keep Blakely in check 55

A window on waiver 56

October 21, 2004 57

Double whammy through double jeopardy 57

More Blakely news from Colorado 58

Consecutive problems? 58

Dissention in the Michigan ranks? 59

October 20, 2004 60

Still more Blakely news from Indiana 60

More Blakely wisdom 60

Seeking news on "alternative sentencing" 60

Covering Blakely in the states 61

Spanning the sentencing blogsphere 62

October 19, 2004 63

Minnesota working on offense/offender idea 63

Shackled to a jurisprudence 65

Judge Bataillon speaks on Blakely-ized indictments 65

Judge nullification (due to mandatory guidelines)? 66

October 18, 2004 67

Living with severed federal guidelines 67

More inside-the-beltway Blakely negativity 68

October 17, 2004 69

OK Blakely insights 69

October 16, 2004 70

So many state Blakely cases, so little time 70

Having faith in prisons 70

More Blakely cases move along 71

Back home, with still more insights 71

October 15, 2004 72

Read all about Booker and Fanfan 72

Oregon gives Blakely broad reading 72

Roper and categorial capital bars 73

October 14, 2004 74

Better than okay in OK 74

Seeking news (and data) from the federal sentencing courts 74

The importance of waiver 75

21st Century Sentencing 76

Highlights of Roper highlights 76

Administering Crime 77

Sentencing news around the blogsphere 77

October 13, 2004 78

Detwiler not (yet) decisive 78

Conceptualizing Blakely 78

Roper reading redux 80

October 12, 2004 80

The Minnesota courts officially address Blakely 80

Still more on Prop. 66 81

The Blakely earthquake hits New Jersey 81

More insights on the death penalty for juvenile offenders 82

October 11, 2004 82

November 14, 2004

Still more state Blakely rulings of note

With Booker and Fanfan apparently still weeks away, we fortunately have more than enough significant state developments to keep Blakely fans busy. Last week, for example, major Blakely decisions came from intermediate appellate courts in Arizona, Indiana, Oregon, and Tennesse (and, of course, California also contributed yet another dozen or so appellate court rulings involving Blakely issues).

Because I am busy trying to write my testimony for the US Sentencing Commission's hearings this week, and thus I can only provided a cursory overview of all of these state developments.

In Arizona v. Resendis-Felix, 2004 Ariz. App. LEXIS 165 (Ariz. Ct. App. Nov. 10, 2004), the court reverses and remands on Blakely grounds, and there is a very interesting dispute between the majority opinion and a concurrence concerning the nature and review of a Blakely error.

In Traylor v. State, 2004 Ind. App. LEXIS 2229 (Ind. Ct. App. Nov. 10, 2004), the court reverses an aggravated sentence on Blakely grounds; the highlights are here courtesy of INCourts.

In State v. Fuerte-Coria, 2004 Ore. App. LEXIS 1462 (Ore. Ct. App. Nov. 10, 2004), the court refuses to find (an unpreserved) Blakely error because it is not clear Blakely extends to the imposition of consecutive sentences on the basis of judicial findings.

In State v. Pierce, 2004 Tenn. Crim. App. LEXIS 994 (Tenn. Crim. App. Nov. 2004), the court reduced one part of the defendants sentence on Blakely grounds, but upheld the imposition of consecutive sentences over a Blakely objection.

November 14, 2004 at 10:11 PM

The decline of death?

This CNN.com article provides, under the headline "Death sentences at 30-year low," the highlights of the latest official accounting by the Bureau of Justice Statistics of the state of capital punishment in the United States. The full report can be accessed here, and it provides a wealth of information about the laws and practices of the death penalty in the United States.

As you will see in the full report, even though the national number of executions and death sentences imposed continues to decline, the story of capital punishment remains a regional story. The great majority of death sentences and executions take place in the south; interestingly, in 2003 the west had no executions but a fair number of death sentences, while the midwest had a relatively sizeable number of executions but relatively fewer death sentences.

November 14, 2004 at 07:34 PM

Responding to Blakely in North Carolina

This article in the New Bern Sun Journal from North Carolina reports that a subcommittee of the North Carolina Sentencing and Policy Advisory Commission "has recommended that aggravating factors and some issues related to prior records be submitted to a jury to determine if they exist."

In the article, John Madler, the associate director of the Commission, highlighted why this recommended modification of N.C. sentencing practice, and more generally "the Blakely earthquake," are not that disruptive in North Carolina:

The change would likely affect a comparatively small number of cases, he said. "Roughly 7 percent of the people who go to prison have an aggravated sentence," Madler said....

The U.S. Supreme Court's ruling would likely have less of an effect in North Carolina than in some other states because factors such as previous records are already taken into account in the law and are not left up to a judge to decide, Madler said.

"It's not that big of a deal in North Carolina, compared to other states," Madler said. "It's just a piece of our process, rather than a whole structure change."

November 14, 2004 at 08:26 AM

November 13, 2004

The joy of footnotes

I am back from my whirlwind trip to the Windy City. But there is no rest for the weary, as I now need to gear up for the US Sentencing Commission hearing planned for next week. I hope to be able to post my written testimony and others before I leave for the event Tuesday morning.

While in transit, I have a chance to read the two interesting circuit decisions noted here. Both decisions provide a thoughtful and telling windows into the doctrinal intricacies and practical realities of federal guidelines sentencing. And, ever engaging, both decisions have hysterical footnotes that merit the spotlight.

In US v. Vasquez, No. 03-1763 (2d Cir. Nov. 10, 2004) (available here), Judge Jon Newman (my former boss) is relaying the facts of a prison guard's conviction for sexual misconduct with inmates. After describing the defendant as a guard, Judge Newman drops this inspired footnote:

We are aware that the formal job classification in the Bureau of Prisons is "correctional officer," a modern label that implies, somewhat extravagantly, that the officer will play some role in "correcting" the wayward inmates in his charge. However we might refer to law-abiding custodians at FCI-Danbury, it would be hypocritical to call Vasquez a "correctional officer."

Meanwhile, in US v. Andrews, No. 03-51367 (5th Cir. Nov. 11, 2004) (available here) the Fifth Circuit reverses a sentence imposed by a district judge who used unlawful means to throw the book at a defendant convicted of defrauding an elderly neighbor. In the course of castigating the judge for not following the limits of the sentencing guidelines, the court drops this footnote:

The district court seems more comfortable with sentencing Andrews based on Dante’s levels of hell, but such a sentencing scheme has not been accepted as the law in this or any other federal circuit. See Andrews, 301 F. Supp. 2d at 609 (stating that the “Eighth Circle” would be appropriate for Andrews’s co-conspirator); see also id. at 612 (stating that the “Fourth Circle” is appropriate for those who prey on the elderly); but cf. United States v. Winters, 117 F.3d 346, 348 (7th Cir. 1997) (affirming denial of a downward departure despite district court’s feeling that defendant belonged on a lower level of hell, citing Dante’s Inferno).

Sentencing Law and Policy Web Log

Sentencing Law and Policy Web Log

Table of Contents

October 2, 2004 through November 14, 2004

November 14, 2004

November 13, 2004