Thursday, August 19, 2004

Focus on the States - A Report from New Mexico

Dave Ziff, a third-year Columbia law student and a good friend, recently attended the National Association of State Sentencing Commission’s annual conference in New Mexico.

Dave has been kind enough to share his notes with me and the readers of this blog. I'd like to thank him for taking such good notes and sending them my way.

Here are Dave's notes from the conference:

1) Russ Hauge from the Washington Sentencing Commission began by saying "You're welcome" to those of us in the audience. Indeed, thank you Mr. Hauge. While many seemed to be interested in the effects of Blakely, his opinion is that "the sky is not falling." Out of 30,000 felony sentences in Washington last year, a mere 100 of those were upward departures without the consent of the defendant. If Blakely requires jury factfinding at sentencing, it does not seem as if the procedural requirements will affect many cases in Washington. Most upward departures were made pursuant to plea, so Blakely would not be implicated. Mr. Hauge made an observation that was echoed throughout the conference: The states do not have money, so the response to Blakely won't be to simply increase all mandatory sentences. While that may be a concern at the federal level, the states are unlikely to be able to afford that option.

2) Judge Richard Walker of Kansas spoke on what they have been doing since 2001, when the state supreme court held that Apprendi applied to upward departures. As you probably know, in response to that ruling Kansas began using sentencing juries. However, the actual use of these juries seems to be rare. In FY 2003 there were only 17 upward departures made pursuant to jury factfinding, and in FY 2004 the number was 21. Judge Walker gave several possible reasons for the low number of jury-based enhancements. First, he discounted the possibility that the additional hassle of using the sentencing jury was a deterrent. The hearings are usually short and not much trouble. Instead, his view was that Kansas's already high sentencing ranges, before any upward departures, were high enough for the satisfaction of most DAs. Additionally, if an extended sentence is desired, DAs can easily move for the imposition of consecutive sentences under Kansas's procedural rules. Often this method can be used to obtain increased sentences instead of separate jury factfinding.

3) Professor Kevin Reitz of Colorado (and reporter for the ongoing revision of the MPC sentencing provisions) presented what he referred to as a summary of potential Blakely pitfalls. Basically, he views Blakely as a tax on states that want to achieve the benefits of guideline sentencing---real notice to defendants, reduction of racial disparity, predictable cost, and good public policy. He worries that some states may respond by imposing a Harris-approved topless guidelines system with mandatory minima, or that states may return to indeterminate sentences thus taking power away from judges and placing it in the hands of parole officials. In states that have yet to adopt guidelines, Professor Reitz fears that parties who oppose guidelines will use Blakely to prevent the adoption of a guideline system, or force a compromise whereby states adopt "voluntary" guidelines without force, instead of real presumptive guidelines that better achieve the aforementioned benefits.

4) One interesting solution, mentioned by Professor Reitz, is the Virginia system. In Virginia all guidelines are voluntary. Like Washington's guidelines, they are set by the legislature, but judges can depart from them for any reason whatsoever, and those decisions are not appealable. Because the defendant has no right to a given sentence, Blakely probably does not affect this system. However, in order to achieve a high rate of compliance with the voluntary guidelines, judges in Virginia are elected by the legislature. Supposedly, the legislature prefers judges who impose sentences within the guidelines, so this political check operates to add some teeth to the voluntary guidelines. I spoke with a member of the Virginia Sentencing Commission about this system, and his opinion was that the legislative oversight was a successful check on judicial discretion. However, in the interest of being fair and balanced (tm), another person from Virginia told me that while the fear of legislative reprisal may have influenced judges when the guidelines were first adopted, in more recent years judges have realized that the legislature doesn't actually check their compliance rates. I cannot speak to the veracity of either claim, but I do know that everyone agrees over 80% of sentences in Virginia are within the guidelines range---not bad for a voluntary system.

5) An interesting observation about the conference---there was virtually no discussion about Almendarez-Torres. Everyone basically assumed that regardless of Blakely's effects, states would be free to use criminal history as a sentencing factor without going to a jury. Professor Rachel Barkow, a professor at NYU, was the only one to mention AT, and observed that while 5 judges of the Supreme Court no longer agree with its holding, the Court has refused to grant cert on the issue in the last 4 years, perhaps indicating a reluctance to actually overrule AT's holding. Who knows what the Court is going to do, but as Professor Barkow said, the view that Blakely won't have much of an effect on the states has to be thrown out the window if AT gets overruled.

6) Rachel Barkow's discussion of the MPC focused on whether the MPC's sentencing recommendations should be altered in response to Blakely. Currently, the MPC recommendations are similar to the Minnesota system, with a sentencing commission and presumptive guidelines departures from which are appealable. The MPC does not recommend which brach of government should contain the commission. Professor Barkow's advice was that in deciding where to place the commission and whether to go with presumptive or voluntary guidelines, the states should ignore Blakely, and likewise Booker and Fan-Fan. It seemed to her that most states would not have much trouble using sentencing juries to cure Blakely problems. Most states, as opposed to the USSG, have limited departures and do not rely on "relevant conduct" outside the conduct of conviction. So states can use sentencing juries much more readily than the Feds. Because of the ease of that fix, states should place sentencing commissions in the legislative branch if they want, and should continue to rely on presumptive guidelines that have the force of law, if that is what they wanted to do before Blakely. Basically, there are just too many other factors weighing on those decisions, all of which are more important than Blakely.

7) Here are a few interesting questions from the conference. I have heard some of these issues discussed elsewhere, but regardless, it is interesting to see what is on the mind of state sentencing commissions.
(a) Some states require some judicial factfinding before allowing the imposition of consecutive sentences. Does Blakely affect this procedure? California has said no, but other states are sure to disagree.
(b) Will defendants actually be helped with the extra bargaining power Justice Scalia claims Blakely gives them? Professor Reitz says no, and he has been looking at the different sorts of pleas defendants got in Kansas both before and after that states "Blakely" ruling. Apparently, the pleas have been the same regardless. There's an article coming out soon looking more closely at this issue.
(c) What constitutes a "fact" for Blakely purposes? What if the jury finds "facts" and then the judge must make a "judgment" based on those facts to determine whether an enhanced sentence is warranted? It seems clear that under Blakely, if a jury finds facts supporting a finding of "deliberate cruelty" the judge could still refuse to impose an enhanced sentence. But what about if that situation is framed differently? What if the jury finds some facts, and then the judge must make a finding that those facts evidence "deliberate cruelty" before imposing an enhanced sentence? Does that violate Blakely? Can the judge's finding regarding the existence of "deliberate cruelty" be appealed?
(d) Speaking of appeals, the Protect Act got some talk at the conference as well. Congress overruled US v. Koon and said that sentencing decisions must be reviewed de novo. But Blakely means that those decisions are now made by the jury, not the judge. So what does that mean for the Protect Act? I would think that Circuit Courts will not be able to review jury sentencing decisions de novo. But is there any role for the review provisions of the Protect Act in the post-Blakely world? Can sentences ever be appealed now under any circumstances?

The overall tone at the conference was that most states could put a band aid on here or there, and everything would be fine. Money was the main topic of conversation. The states face budget problems unmatched by the federal government, and any Blakely response on the state level is likely to focus on the bottom line. One benefit of guidelines that was trumpeted here, one that I had never heard in the federal discussion, was the ability to predict with accuracy changes in prison populations and the concomitant costs. Being "tough on crime" at the state level means filling prisons, and that means spending money. Guidelines allow lawmakers to know exactly how long people are going to be in jail for certain violations, and budget accordingly.

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