The Columbia Continuum

After giving it some thought, I’ve decided to put the Blakely Blog to bed for good. I feel that other blogs and similar resources on the internet are doing an excellent job of keeping up with all of news and developments in this area of law and my efforts are largely duplicative. Furthermore, my schedule (which includes assisting in a soon to commence criminal trial in the SDNY) has not permitted me to spend much time working on the blog since the Booker decision.

It’s been fun, though. When I started this little endeavor I never imagined that this blog would get the attention it received. I know that the Blakely Blog was a productive endeavor from the scores of emails I received from people whose friends and family members relied on this blog, as well as others, to help sort out a complicated issue that affected them very personally.

I’d like to thank all of the people that took the time to write to me and send me opinions and news from around the country. I’d also like to thank Laurie Cohen from the Wall Street Journal who interviewed me about the Blakely Blog this summer and even mentioned me by name in the Journal.

Although I won’t be blogging any longer, I plan on submitting at least one piece of writing on the Booker case sometime this year to a legal journal. You can keep an eye out for that in the near future.

Again, thanks for reading and I wish you all the best.

Sincerely,

Jason Hernandez
jph2026@columbia.edu

The second panel’s topic was: Considerations at Sentencing – What Factors are Relevant and Who Should Decide?

The moderator was Judge John Martin, Debevoise & Plimpton.

The panelists were:

Kyron Huigens, Professor, Benjamin N. Cardozo School of Law
Kevin R. Reitz, Professor, University of Colorado School of Law
Paul H. Robinson, Professor, University of Pennsylvania Law School
Barbara Tombs, Executive Director, Minnesota Sentencing Guidelines Commission

This is by no means a complete or official report on the symposium; the Columbia Law Review will have an official report soon. All errors are my own.

Paul Robinson

Prof. Robinson began his presentation by suggesting that the question posed to the panel is misleading because it makes the assumption that there is one decision maker. In fact, there are several and they make a number of decision on several topics, such as:

Policymaking – setting goals, purposes
Rule articulation – turning general policy into articulable rules
Fact finding
Judgment making – expressing normative judgments
Determining punishment amount
Determining punishment method

Prof. Robinson used a chart (which I will post here when I get my hand on it tomorrow) that illustrates the kinds of decisions made by different decision makers (legislatures, judges, sentencing commissions, parole boards, juries, etc.)

In his opinion, the SRA got it right, but the Commission got it wrong.

Kyron Huigens

Prof. Huigens began by professing a preference for discretionary sentencing. He spent a great deal of time exploring the tension between Williams v. NY and the Court’s most recent 6th Amendment jurisprudence. That tension – known as the Blakely paradox to some (or possibly just me) – is that a judges can do what Blakely proscribes only as long as the legislature has refrained from establishing a statutory structure to guide sentencing. It seems inconsistent that judicial fact-finding is acceptable in indeterminate systems where defendant’s have little to no recourse to appeal a sentence, but impermissible when the legislature creates guidelines. He promised to explore this topic in an article he is working on.


Kevin R. Reitz

Prof. Reitz said that the states that have done the best job are the ones that have put in presumptive guidelines. That list includes Minnesota, Washington, Oregon, Kansas, North Carolina and Ohio. (There may have been others that I missed.) The best ones, he said, remove the prison release discretion from parole boards.

The states that have indeterminate systems are driving the prison population explosion.

Prof. Reitz discussed some of the problems he has with Booker and Blakely. The effect of Booker when lined up in the context of other Supreme Court decisions that have created loopholes to the Sixth Amendment is what he called “Constitutional Swiss cheese.” And there may be more holes than cheese.

The holes are all of the exceptions to the Booker rule, which are:

Williams; Booker II
Harris; McMillan
Patterson

He summarized the lay of the land as follows. The following systems have no Blakley problems: voluntary guidelines, indeterminate sentencing, mandatory minimum guidelines and mandatory minimum statutes. The following systems have Blakely problems: presumptive guidelines, presumptive statutes, mandatory guidelines.

The jurisdictions with Blakely problems have two options – Blakelyization or avoidance (change the system entirely).


Barabara Tombs

Barabara Tombs began by explaining that Minnesota’s guidelines are driven by retribution as a penal philosophy. “That’s why we put people in prison.” (Or something close to that). She said that the Commission’s work is guided by their chosen penal philosophy. It helps the Commission to focus on what our guidelines can and cannot do.

She felt that Blakely and Booker will hurt the younger sentencing commissions more than the older ones.

She discussed some statistics from Minnesota which were of interest. In Minnesota they have a 2% upward departure rate for sex offenses and murder. There are a lot of downward departures in drug cases (60% in some cases). Curiously, Minnesota has mandatory minimum drug sentences but judges can depart downward from the mandatory minimum. (I’m not sure how that works).

Finally, she (sensibly, in my view) observed that Blakely was all about jury sentencing and after the first few pages of Booker, it seems to have disappeared. Where did it go?

Judge Martin

In wrapping up the panel, Judge Martin said that he was disturbed by how much deference is being paid to reducing sentencing disparities. He feels like we have elevated that goal to too high a position.

He said that he likes the new system over the old, because it leaves guidelines and appellate review. Hopefully Congress won’t jump in too quickly, he added.

The first panel addressed the topic of prosecutorial discretion and its changes. The moderator was CLS Professor Paul Shechtman.

The panelists were:

Martha Coakley, District Attorney, Middlesex County, MA
Michele Hirshman, First Deputy A.G., New York State
Nancy King, Professor, Vanderbilt University School of Law
Ronald F. Wright, Professor, Wake Forest University School of Law

What follows are some highlights from the panel discussion. This is by no means a complete or official report on the symposium; the Columbia Law Review will have an official report soon. All errors are my own.

This panel will explore whether prosecutorial discretion holds the keys to state sentencing, as many say does in the federal system.

Ron Wright

Prof. Wright began his comments by discussing the regulatory imbalance in sentencing. Analogizing the imbalance to other more traditional areas of regulation, he suggests that we can learn from the regulatory imbalances in sentencing.

On the topic of prosecutorial guidelines, Prof. Wright noted that some states like Kansas (and Minnesota) considered establishing prosecutorial guidelines, but in the end abandoned the effort. At least one state – Washington – has experimented with the idea of prosecutorial guidelines. These are internal guidelines, however.

Prof. Wright spent a fair amount of time talking about New Jersey, a state he described as not the hot bed of sentencing reform.

Nancy King

Whereas Prof. Wright’s focus was on macro-sentencing issues, Prof. King focused on the micro picture.

She noted that a great deal of the sentencing disparity debate has focused on racial disparities and disparity among sentencing judges. Missing from the analysis is a study of the mode of conviction. For example, sentences will vary depending on whether the defendant chose a bench trial instead of a jury trial, or went to trial at all. This is what some have called the guideline’s dirty little secret.

Prof. King is in the midst of studying data from 5 states (Pennsylvania, Maryland, Minnesota, Kansas and Washington) to study the disparities that arise based on different modes of conviction. This is a work in progress but she shared some of her preliminary results.

In Maryland and Pennsylvania she found that when the defendant chooses a jury trial, they are much more likely to be incarcerated.

(Except for cocaine offenses in Pennsylvania where bench trials are more likely to result in incarceration, but incarceration rates are lower in bench trials for simple possession).

In Washington, whether the defendant pled guilty, chose a bench trial or a jury trial, the rate of incarceration did not vary in a statistically significant manner.

In Minnesota she examined 3 offenses and found that in 5th degree drug cases, a bench trial meant the defendant was less likely to go to jail.

Prof. King also observed that in mandatory guideline states the bargain is over the charge, not the sentence, because there is no room to bargain about the sentence. Some have suggested that there needs to be a year between the top and bottom of the guideline for there to be meaningful sentence bargaining.

Michele Hirshman

Michele Hirshman has been working for the NY Attorney General’s office for the last 6 years. She immediately observed that it is important to get prosecutors to see themselves as seeking justice, not convictions.

In NY, the discretion of prosecutors is very limited. Grand jury proceeding place major restrictions on what a prosecutor can do, making it difficult to build a case. The prosecutor has to present a very big part of their case to the grand jury. Elaborate evidentiary rules that constrain how they can prove a case.

She discussed the significance of electing judges and prosecutors, arguing that this democratic check is the best way to constrain prosecutors.


Martha Coakley

Martha Coakley began her presentation by asking whether we were asking the right questions? First, we thought the problem was sentencing. We addressed that. Then we thought the problem was prosecutors. But what about the role of the defense counsel?

She suggested that better funding and treating defense work as a highly respected profession is an important way to check prosecutors.

She observed that in Massachusetts they have Rule 25(b)(2) which allows judges to reduce a charge if it’s unfair. Judges have more discretion than prosecutors. This is an important check on the prosecutor.

Finally, she argued that all crimes are not created equal. In child abuse cases the ability to intervene early is of utmost importance. Someone who abuses kids needs a different sentence and rehabilitative program than a bank robber.

We spend too much money on putting people in jail and focusing on sentencing guidelines.

This post is coming to you live from Columbia Law School’s state sentencing symposium. The symposium was kicked off with some opening remarks by Judge and CLS Professor Gerard Lynch. What follows are some highlights of his opening remarks.

Judge Lynch began his comments by noting the impeccable timing of the symposium. The timing, however, was fortuitous – the symposium was not planned as a response to Blakely or Booker. The original purpose of this symposium was to steer the sentencing conversation away from Congress and the Sentencing Commission, and towards the courts.

Sentencing is still a topic that is not given a lot of attention in criminal courses. Legal and academic writing tends to focus of Congress, although federal sentencing only composes 7% of the incarcerated public. This is especially significant given that the focus of federal law (white collar crime, immigration and drug crimes) is distinct from the traditional street crimes that most people are concerned about.

Although there is no clear pattern or trajectory in sentencing law, the states have been the true innovators in sentencing.

The symposium starts tomorrow at 1:30pm with Judge Lynch's opening remarks. The event is open to the public and free of charge.

For more details go here.

I'll be in attendance and blogging from the symposium.

Law.com has an interesting backstory to Justice Breyer's ethical quandary regarding the Booker case. Can one of the guidelines' architects decide their fate? Apparently, it not only matters what you ask, but who you ask. As you may recall, the bloggers spotted this issue well before the press. In this post from August, I discussed Justice Breyer's possible recusal, with a little help from the blogging community.

The Monitor has a good article discussing Booker's impact on different types of crimes. The article argues that Booker will affect white collar crime and drug crimes more than any other class of crimes, whereas more "serious" crimes will not be disturbed.

Tulsa World has an interesting article that is a few days old entitled, "Judge sticking with sentencing guidelines." Unfortunately, you have to be a subscriber to access the article. But, I did manage to find this little blurb:

U.S. Chief District Judge Sven Erik Holmes is a believer in guideline sentencing, and he intends to keep using the existing federal guidelines even though the U.S. Supreme Court said Wednesday that they are no longer mandatory.

Chief Judge Holmes issued a Blakely Blockbuster opinion in August in US v. O'Daniel. In that decision, he laid out a 4 point plan for bringing the guidelines into compliance with Blakely.

Interesting, It's-A-Small-World News: Alexandra Shapiro, the primary author of the New York Council of Defense Lawyers amicus brief, and a partner at Latham & Watkins NY, is co-teaching a Seminar in Federal Criminal Practice at Columbia Law School this semester. The course, which I am enrolled in, is also taught by Jonathan Bach, a partner at Kronish Lieb Weiner & Hellman LLP.

Sentencing is, of course, a big part of the seminar due to Blakely and Booker.

Findlaw.com columnist Mark Allenbaugh writes, "The Supreme Court's New Blockbuster U.S. Sentencing Guidelines Decision: A Clear Sixth Amendment Ruling, with an Invitation to Congress to Create a Better Remedy."

Salon.com cleverly pokes, "Supreme Court to Congress: Here's what you really meant." Salon asked the current chair of the American Bar Association's committee on sentencing, Jim Felman, a practicing defense attorney in Tampa, Fla., to shed some light on the surprising Supreme Court news.

The Washington Post editorializes, "The Court on Sentencing."

Oregonians will find the following article interesting, "A better way to set prison time - Hit to federal sentencing laws is a reminder to Oregon that the state also must update its court practices."

I have some coherent commentary planned for tomorrow. Until then, here are a few more news stories of note.

“Supreme Court generates more sentencing turmoil,” from The Columbian:

Stephen Kanter, a professor at Lewis & Clark's Northwestern School of Law, said many sentences may be reconfirmed, with judges saying they would have given the same sentence even if they hadn't been bound by guidelines.


“U.S. Sentencing Guidelines Made Advisory by Court,” from Bloomberg:

``It probably will create additional leverage for defense counsel in negotiating agreements,'' said B. Todd Jones, a former U.S. attorney in Minnesota. ``They know they have two bites at the apple now'' -- with prosecutors and judges.

Here is a collection of recent news stories on yesterday's opinions by the Court. Where relevant, I've excerpted interesting parts from the stories.

"High court loosens criminal sentencing guidelines," from the Seattle Times:

Gregory Poe, a Washington, D.C., attorney and former federal defender, said, "Congress is likely to make changes. And there is great concern that Congress may have an appetite to create a system applying strict penalties regardless of the merits in individual cases."

...

Frank Bowman, a professor at the Indiana University School of Law and a leading expert on the guidelines, said, "There is one thing that appears to be clear: The court has, by either judicial fiat or an act of statutory interpretation, created a system of advisory guidelines which, I think you can at least argue, give federal trial judges the greatest sentencing power they've ever had."

Assistant Attorney General Christopher Wray said the Justice Department was "disappointed" that the court had made the guidelines advisory in nature, but emphasized that the opinion makes clear that trial judges still are required to consult the guidelines in making sentencing decisions.

"Area well poised in wake of Supreme Court sentencing decision," from the Waco Tribune:

Federal inmates at the McLennan County Detention Center in downtown Waco raised the roof for joy Wednesday morning after learning on television news that the U.S. Supreme Court had upended federal sentencing guidelines.

Most inmates there have yet to be sentenced and are waiting to go to court, said Thomas Medart, chief of security at the privately run facility.

"They're happy," he said. "It's postponed some of the sentencing that would have happened, but it's not creating any problems for us."

...

U.S. District Judge Walter S. Smith Jr., who presides over Waco's federal court and is chief judge for the Western District of Texas, said he wasn't surprised by the ruling. After all, Smith issued a ruling of his own in July saying the sentencing guidelines were not constitutional and violated defendants' Sixth Amendment right to a jury trial.

Smith said he was pleased with the decision because it will give federal judges more discretion in sentencing. He said

...

Whatever the fallout, Smith said he doesn't believe Wednesday's ruling will be the last word on the subject, an observation echoed on the Supreme Court. Congress will likely set higher mandatory minimums for many crimes, again taking away judges' discretion, he said.

Johnny Sutton, U.S. attorney for the Western District of Texas, said he needs more time to digest the high court's ruling. But it doesn't appear "the sky is falling," he said.

"Sentencing guidelines tossed out," from The Pittsburgh Post-Gazette:

Calling yesterday's decision a "mess," Ohio State University law professor Douglas Berman said: "This is going to be applied in diverse and dramatically different ways in the lower courts."

For students of the Supreme Court's internal politics, the split decision yesterday reflected the influence of Breyer, who worked on sentencing reform as the Senate Judiciary Committee's chief counsel in 1979 and 1980 and served on the Sentencing Commission from 1985 to 1989. "This is Breyer's revenge," said Berman. "He loves the world he created and wants to hold onto it any way he can."

...

Sen. Arlen Specter, R-Pa., who as the Judiciary Committee chairman would preside over any rewriting of sentencing law, reacted cautiously to yesterday's ruling. "I intend to thoroughly review the Supreme Court's decision and work to establish a sentencing method that will be appropriately tough on career criminals, fair and consistent with constitutional requirements," he said.

"Judges Freed From Sentencing Rules," from the LA Times:

By basically preserving the current system, the ruling is not likely to have a broad effect on criminals serving federal terms or those awaiting sentence. It is unclear what effect it will have on future sentencing.

"There are going to be a lot of disappointed criminals in federal prison today," said Kent Scheidegger of the Criminal Justice Legal Foundation, an organization in Sacramento that supports the rights of crime victims.


Some other stories include: "Sentencing ruling may aid Cianci's early release," from the Providence Journal; "Justices weaken sentencing rules," from the Philadelphia Inquirer;"Federal sentencing system to get overhaul," from the Knoxville News Sentinel.

I’ve put together some of my initial reactions to today’s decision in Booker and Fanfan. The decision is a whopping 124 pages and there’s a lot to discuss, of course. These are just preliminary thoughts that I hope to refine and pick-up in the next several months.

The first opinion, written by Stevens, addresses the first question: does Blakely apply to the guidelines? The answer is yes. Although there is plenty to talk about here, the real action is in the second opinion, authored by Breyer.

Two meta-observations. First, the tone of both opinions is rather matter-of-fact when compared to Blakely. Of course, Scalia is not exactly the kumbaya type, but I get the feeling that the bitter fight over the guidelines was waged in Blakely, not in Booker and Fanfan. Second, the Booker and Fanfan opinions don’t cite to academic commentary, whereas Blakely cited to academics on the issue of prosecutorial discretion and pleas. In the remedy opinion, the Court makes several assertions regarding alternative remedies that could have been more fully explored if they had cited to scholarly work.

Now, I’ll turn to a few topics that stuck out to me.

Elements, Statutory Construction and the 6th Amendment

The Court’s first citation is to In re Winship. To my surprise, the Court then discusses Jones at length. Jones was a statutory construction case where the Court was called upon to decide whether Congress intended to create 3 separate car jacking offenses, or whether the statute identified sentencing factors. Although Jones (and Castillo and Almendarez-Torres) are relevant, they do not pose 6th Amendment questions. These cases presume the answer to the question before the Court. We know that the government must prove all elements of an offense to a jury beyond a reasonable doubt. It’s unclear how this line of cases helps us understand how we should treat a leadership enhancement (which is not an element of any offense) in light of the 6th Amendment.

But here’s the tougher question: is drug quantity an element of the offense after Booker and Fanfan? The opinion suggests that they are not, but that they may have to be treated as elements. Judge Easterbrook’s dissent in Booker said that the majority’s conception of drug quantity under Blakely was nothing more than Apprendi. Ok. Where do we stand now?

(I recognize that my thoughts on this are inchoate, but it’s late and I’m still just thinking out loud.)

What’s good law now?

The majority opinion authored by Stevens was forced to confront the viability of several cases now that Blakely applies to the guidelines. Here’s a quick run-down of what the Court said: Dunnigan survives. Witte and Watts are inapposite because they did not present 6th Amendment questions. Edwards and Mistretta are not inconsistent with the Booker ruling.

I find it hard to believe that none of these cases were overruled, or at least recognized as being in tension with the ruling. One gets the feeling that Stevens is distinguishing these cases on very narrow grounds that may not survive closer scrutiny.

Retroactivity, Prior Convictions and Mandatory Minimums

Unfortunately, the Court didn’t say much (if anything) about retroactivity, prior convictions (Almendarez-Torres) or mandatory minimums, and fact finding that leads to the imposition of mandatory minimum sentences (Harris).
This isn’t surprising, I guess, given that the cases didn’t present any of these issues. My guess would be that the Court will now grant cert on a case to handle the retroactivity question, which is the most pressing of these three topics. The Court’s adherence and praise of the Apprendi/Ring line of cases suggests that Booker and Fanfan won’t be retroactive.

What Would Congress Do? (WWCD?)

Debates will surely rage over the majority’s take on what Congress would have preferred if faced with the limitations imposed by Booker and Fanfan.

I’ll just make a brief point here and return to the topic at a later date. The Court appears to interchangeably apply two standards here: what would Congress have intended and what will make the smallest fuss. The second standard appears to play a prominent role and I’m not convinced that that’s the right standard. I am also a bit skeptical of the Court’s zealous protection of judicial factfinding. Of course “court” meant “judge” in 1987. All we knew was judicial fact finding. I’m not convinced that this legislative preference should trump the newly invigorated 6th Amendment. Instead, we’ve been given a “soft” 6th Amendment jury trial right. This portion of the remedy opinion seems out of sync (“old school,” if you will) with the new, hip, “not your found fathers” 6th Amendment that Stevens “updates” for us.

Advisory Guidelines, Relevant Conduct and Uniformity

In the second opinion, the Court justifies its choice of advisory guidelines over a jury fact-finding regime, in part, on the need to ensure uniformity by adherence to the offender’s real conduct, as expressed by relevant conduct. The argument here is that if judges can’t take relevant conduct into consideration, there will be an unbearable sentencing disparity that the SRA was supposed to eradicate.

This argument, in my view, relies on some questionable assumptions about the ability of a jury fact-finding regime to properly “account” for relevant conduct. But even assuming that jury fact-finding could not account for relevant conduct, I’m not sure that the sentencing disparity that the majority is talking about here is the kind of disparity that gave birth to the guidelines. Base level offenses would remain unaffected by a jury fact finding system. The defendant would have to answer for any discoverable relevant conduct that makes it into the indictment. Just how much of a disparity are we facing here?

Not to mention that there are competing sentencing goals that are recognized by the SRA that would counsel against rigid adherence to a real offense system. The Court’s discussion of relevant conduct cast in light of uniformity concerns glosses over the fundamental incompatibility of Blakely and relevant conduct, in my view.

Here's some old news - the Supreme Court ruled today that Blakely applies to the guidelines. The remedy appears to be making the guidelines advisory, subject to appeal based on a "reasonableness" standard.

I just got my first look at the opinion(s), which you can access here. I reserve the right to correct my characterization if I made a mistake.

More to follow later tonight...

Well, in 5 hours I'll be on a plane to Ft. Lauderdale. The Supreme Court will announce any new decisions tomorrow at 10 am. So my prediction, based solely on my travel schedule, is that Booker and Fanfan will be decided tomorrow, as my plane takes off.

Details to follow, if I'm right, after I land in FLL.

Still no decision. The next possible day for a decision is tomorrow. That and you might even get that pony you wanted for your birthday.

I've just been made aware of some exciting additions to the upcoming Columbia Law Review symposium on state sentencing entitled, Sentencing: What's at Stake for the States?

The symposium will be held on the campus of Columbia Law School this January 21 and 22. And we might even have a Booker and Fanfan decision by then! Imagine that.

I've pasted the text of a recent press release announcing the event and some recent additions.


Judge William Pryor Headlines Symposium on State Sentencing Guidelines

Eleventh Circuit Judge William H. Pryor, Jr. Highlights List of Judges, Academics, and Practitioners Coming to New York to Debate the Merits of Various Sentencing Regimes

New York, NY --- The Columbia Law Review announced Thursday that it will be hosting a symposium entitled Sentencing: What's at Stake for the States? this January 21 and 22 on the campus of Columbia Law School in New York City. The symposium, centered primarily on state criminal sentencing regimes, will feature more than twenty of the most interesting and thoughtful voices in sentencing scholarship and practice.

The Supreme Court's decision last term in Blakely v. Washington will very likely lead a number of states to revise their sentencing guidelines, even if only to quell uncertainty as to the case's applicability. This symposium seeks to contribute to these endeavors by providing a forum for candid and lively discussions of the practical and theoretical implications of various sentencing systems and reforms. To that end, it will address a broad range of topics, including the institutional concerns inherent in guideline systems and the competing or complimentary policies underlying different sentencing frameworks.

The keynote address will be delivered by Judge William H. Pryor, Jr., of the Eleventh Circuit Court of Appeals. Throughout his career, Judge Pryor has been an outspoken advocate of sentencing reform. As Attorney General of Alabama, he led the creation of that state's Sentencing Commission, which he saw as a means to achieve "truth in sentencing," eliminate unjust disparities, and relieve a serious prison overcrowding problem and budgetary crisis. He also has championed the use of alternatives to incarceration for first-time nonviolent offenders, such as work and restitution penalties, and counseling for drug offenders.

In addition to Judge Pryor, the symposium will feature professors Rachel Barkow (NYU), Frank Bowman (Indiana), Antony Duff (Stirling), Richard Frase (Minnesota), Kyron Huigens (Cardozo), Nancy King (Vanderbilt), James Liebman (Columbia), Marc Miller (Emory), Kevin Reitz(Colorado), Paul Robinson (Penn), Kate Stith (Yale), Paul Shechtman (Columbia), Michael Tonry(Cambridge), Ron Wright (Wake Forest), and Franklin Zimring (Boalt Hall); Middlesex County(MA) D.A. Martha Coakley; Michele Hirshman of the N.Y. Attorney General's Office; Roxanne Lieb of the Washington State Institute for Public Policy; Barbara Tombs of the MN Sentencing Guidelines Commission; and Judges Gerard Lynch and John Martin, Jr. (retired).

The symposium will begin midday Friday, January 21, highlighted by Judge Pryor's address at 5:30 p.m., and end Saturday, January 22. It will be open to the public and free of charge. For a complete listing of the participants, panel topics, and event times, please visit http://www.columbialawreview.org/symposium/.

At least that appears to be the case, based on reports from the SCOTUS blog. This means we have to wait until the new year for a decision. Jan. 11th is the next possible date for an opinion. Wow.

The next likely dates for an opinion are December 7, 8 and 13th.

I've just received word that the Columbia Law Review has posted an online announcement of an upcoming sentencing symposium which will focus on state sentencing. The symposium will take place at Columbia Law School on January 21st and 22nd.

The symposium will feature some fantastic panels. Here's what the web site is reporting:

Panel 1: Prosecutorial Discretion and Its Challenges
Michele Hirshman, First Deputy A.G., New York State
Nancy King, Professor, Vanderbilt University School of Law
Ron Wright, Professor, Wake Forest University School of Law

Panel 2: Considerations at Sentencing – What Factors are Relevant and Who Should Decide?
Kyron Huigens, Professor, Benjamin N. Cardozo School of Law
Kevin Reitz, Professor, University of Colorado School of Law
Paul Robinson, Professor, University of Pennsylvania Law School

Panel 3: Theories & Policies Underlying Guideline Systems
Antony Duff, Professor, University of Stirling
Richard Frase, Professor, University of Minnesota Law School
Roxanne Lieb, Director, Washington State Institute for Public Policy
Michael Tonry, Professor, University of Minnesota Law School

Panel 4: The Institutional Concerns Inherent in Sentencing Regimes
Rachel Barkow, Assistant Professor, New York University School of Law
Frank Bowman, Professor, Indiana University School of Law
Marc Miller, Professor, Emory School of Law
Frank Zimring, Professor, University of California at Berkeley School of Law

For more information, check out the CLR web site dedicated to the symposium here.

This post makes official what is obvious to readers of this blog - I am on a Blakely break of sorts until the Court decides Booker and Fanfan. The demands of Federal Courts, Mass Torts, Trial Practice and Tort Reform Research require my attention while the Supremes trade drafts back and forth.

But once they decide, I'll be back to my old form, blogging virtually 24/7. I've been doing a lot of sentencing reading the last month and I hope that this will help to make my post-Blakely commentary all the more insightful.

Hey, just think. I might be back on the horse on Monday. It could happen.

Unfortunately, I've been away from the blog for quite some time. My mind has been at ease, however, because I know you are all in good hands as long as Sentencing Law and Policy is out there. Let's face it, in the world of Blakely blogs, Sentencing Law and Policy is the New York Times of blogs, whereas the Blakely Blog has more of a New York Post feel. That's ok, I like it that way.

One of the things that has kept me busy is a pro bono project that I have started as part of Columbia's pro bono program. What am I working on? A Blakely project, of course. I get many emails and letters from prisoners and their family members asking for my help on various Blakely appeals. Unfortunately, I have to turn all of those requests down because I'm not an attorney. Right now, I'm just a guy with a lot of debt and a blog. I've taken-on this pro bono project, which is supervised by a real live attorney, as a way to give back to the community.

Here's what I'm working on, and if anyone out there can offer some help, I'd be very appreciative (especially from jurisdictions outside of NY). This case only concerns New York state law, there are no federal charges. The client was indicted for and found guilty of, among other things, manslaughter in the first degree (NY Penal Law § 125.20 (1)) and criminal possession of a weapon in the second degree (NY Penal Law § 265.03). The indictment did not allege against whom the defendant intended to use the weapon for purposes of the possession charge, which is a distinct crime from manslaughter and relevant for purposes of sentencing. The judge, however, sentenced the defendant for manslaughter and criminal possession of a weapon.

Here's where the specifics of New York state law come in.

The judge imposed consecutive sentences on the defendant despite N.Y. Penal Law § 70.25(2) which states:

This relevant because if the indictment alleged that the defendant intened to use the weapon which he criminally possessed against the same person who he was charged with manslaughter, § 70.25(2) would likely bar a consecutive sentence.

The question here appears to be: could the judge independently find that that the defendant possessed the weapon with the intent of using against someone not in the indictment for the purposes of sentencing him to a consecutive sentence? Prior to the Blakely ruling, the state argued that the sentence did not go beyond the statutory maximum. That Apprendi-based understanding of the law is clearly undercut by Blakely, but the Blakely issue here is not as clear cut as it is in a number of cases. Was the indictment not sufficient enough to comply with Blakely?

Assuming that Blakely doesn't apply, there is an argument that criminal possession of a weapon is an offense that should be sentenced concurrently with manslaughter under § 70.25(2). My question here is, does the Blakely ruling's like obliteration (maybe "obliterate" is a strong word) of the sentencing factor/element distinction undermine NY precedent which states that possession of a weapon distinct for § 70.25(2) purposes from manslaughter?

I know that there have been challenges in California to the state's consecutive sentences law. Those cases may be inapposite because the defendant in this case is not challenging the constitutionality of § 70.25(2). He is only challenging the judicial finding of fact not included in the indictment. On the other hand, I would still like to hear from anyone who has any thoughts or experience in mounting challenges to consecutive sentencing statutes from all jurisdictions, including California.

I would appreciate it if any one out there was willing to discuss the concurrent/consecutive sentencing aspect of this case, or offer any other suggestions for research outside of New York.

Update: I've added some detail and taken some things out of this post since I first put it up.

On Wednesday, October 20 (9:00 a.m. PST) and Friday, October 22 (12:00 Noon PST), AFDA will conduct an online seminar entitled, "Restitution Proceedings In Federal Sentencing."

The program will run approximately 45 minutes to one hour. It will be held in the ONLINE SEMINARS section of the AFDA web site, which operates like a chat room but with moderator controls. The presentation format will be audio accompanied by the sequential placement of slides in the chat room screen, similar to a powerpoint presentation.

The program will present a five-step analysis in handling restitution determinations. As courts have recognized that restitution is a statutory obligation and thus not based specifically on the sentencing guidelines, this topic remains relevant in our handling of fraud / theft during this remarkable period of uncertainty surrounding the guidelines, as we await the Supreme Court's ruling in Booker / Fanfan.

For more details, please visit the AFDA web site.

You can access a transcript of the oral argument here.

After spending over an hour on the A train on my way to JFK and five and a half hours in the middle seat of row 32 aboard Delta flight 462, I’ve finally made to the beautiful campus of Stanford Law School. I’m anxiously awaiting the start of what promises to be two great days of discussion and learning. Although this blog represents the bulk of my thinking on Blakely, I hope that as a result of the Stanford conference, I will be able to produce a more serious and scholarly look at Blakely for publication in a law journal. In particular, I am very interested in exploring the historical role of the jury and the Blakely majority’s use of history to justify the majority opinion.

All of that will have to wait a little longer. The conference does not start until the afternoon, so I’m taking some time this morning to offer some of my thoughts on Monday’s argument in Booker and Fanfan.

My Prediction for Question One

As Tom Goldstein, the consummate Court insider, has reported, the word is that the Blakely majority will hold (see this post, and the surrounding posts as well). Based solely on my observation of the argument, I think that the Court will split 6-3 with respect to Question One, with Justice Kennedy joining the Blakely majority. As you may recall, I set the line at 1.5 Justices for the Booker/Fanfan argument, so I guess I think that the respondents will “cover.” (Remember, this is for novelty purposes only.).

Here’s why I think the break-down will be 6-3. First, I’m assuming that the Blakely majority will hold. There were some reports that Justice Ginsburg might defect from the Blakely majority but based on her questions on Monday, I don’t think she’s likely to defect. Plus, others are reporting that she’s sticking with the majority. I guess I just think that’s right.

Second, I can’t see O’Connor or Breyer, after their dissents in Blakely, making a 180 degree turn. These two Justices were the most active questioners of the respondents (especially Breyer), and I don’t think they will change their position. They put too much into being the voice of the dissent in Blakely, in my opinion. The Chief is hard to peg, but my guess is that he will join Breyer and O’Connor in dissent.

Finally, that leaves Justice Kennedy. Remember, Kennedy is no fan of the guidelines. In fact, he dislikes the guidelines so much that he has a report which bears his name that attacks the guidelines. Despite those feelings, he dissented in Blakely, but the handwriting is on the wall with respect to Booker and Fanfan. Why not join the majority? In my notes, I have Justice Kennedy asking only two questions to Acting SG Paul Clement, both on the topic of what constitutes a “Blakely fact.” He asked the SG if there were any facts which could still be found by the judge under Blakely. He used determining the defendant’s remorse as an example. Doug Berman has picked up on this line of questioning, suggesting that the Court start working through a distinction between “offense facts” and “offender facts.” Although I don’t think that Justice Kennedy will be able to convince the majority to endorse his bright-line, I take his questions to those of a Justice considering joining the majority. Furthermore, I think the respondents may have convinced Justice Kennedy that the "collaborative process" or "dialogue" between the branches which he extols in his dissent may have died in recent years.

I know this amounts to nothing more than a hunch, but I’ll stick to it. (By the way, if you haven’t read the Vanity Fair piece about Bush v. Gore, where former clerks on the Court at that time spill some of the beans, you should certainly get a copy. But be warned, there are some harsh words about Justice Kennedy in there and a choice quote from Scalia reminiscing about his days in Brooklyn.).

On the other hand, Justice Kennedy did ask the respondents what can be viewed as some hostile questions. He pressed them on why a standardless discretionary system is preferable to the guidelines; he asked what policy or principle dictated the respondent’s conclusions; and he asked some pragmatic questions regarding factfinding by correctional authorities, as opposed to judges. In a way, these questions are not hostile if Justice Kennedy’s fears of a standardless sentencing regime are allayed by the Court’s answer to question two. If the Court endorses an advisory guideline system, with meaningful appellate review, I think Justice Kennedy’s fears are put to rest and he joins the majority.

Assuming my prediction is right, I wonder if lower courts will be left to pickup where Justice Kennedy left off in the oral argument. Perhaps they will be the ones to propose the line, if there is one at all. As I mentioned at the beginning of this intolerably long post, I’d be interested to see how Justice Kennedy’s line fits with the judge’s and the jury’s historic role.

Question Two – Who the heck knows?

Trying to figure out what the Court will say with respect to question two is likely an exercise in futility. There are simply too many possibilities and permutations which make predicting how 5 members of the Court will vote very difficult. I do, however, think that based on the questions asked by Justice Breyer and O’Connor, which I think focused more on the remedy than the first question (the transcript will prove me right or wrong on that), that these two Justices will try very hard to agree on an answer to the severance question. My inclination here is that Breyer and O’Connor are thinking, “Well, the guidelines are going down and there’s nothing we can do about it. We might as well do what we can to help forge a consensus with respect to the second question. After all, or dissents in Blakely were so pragmatic, we might as well be pragmatic here and do what we can to limit the chaos.”

I could do a little more speculating on question two, but instead I’d like to raise a point which has been haunting me since the oral argument. At one point during the argument, one of the Justices quipped that their opinion on the second question will have limited relevance because Congress will inevitably, and likely quickly, act to repair the guidelines after the case is decided. There are reports circulating that Congress is contemplating a slue of mandatory minimum sentences should the Court invalidate the guidelines. Should that come to pass, I can’t envision who the winners would be.

I've been offline for a few days, but I will soon return to the blog. I've been busy arguing before the Senate, the Columbia Law School Senate, that is; researching for a professor (non-sentencing related); and reading for class (not so much on the last one).

I'm about 2 minutes, I'll be on my way to JFK where my ultimate destination will be Stanford Law School and the upcoming Sentencing Conference.

More blogging to come...

First, let me say that I apologize for the errors in the posts by Dave Ziff (which have been corrected). Those errors are my own, not Dave’s and are attributable to my hurried attempt to get news out on the blog. In particular, I offer my apologies to Chris, who is a fellow blogger at TalkLeft and a supporter of this blog.

I’d also like to thank Dave Ziff for taking the time to transcribe my ramblings into something coherent for readers of the blog. Thanks Dave!

Dave’s posts offer a rather broad sketch of the argument. Most of the major threads of discussion and questioning are covered by Dave’s posts, but there are many fine points which were not captured. I hope to raise those finer points over the next few days.

A few other blogs are covering the Blakely argument, notably Doug Berman on Sentencing Law and Policy (who I met in person for the first time, despite our many email exchanges), Tom Goldstein covers the argument with some insider information at the SCOTUS blog and Howard Bashman has coverage of the argument on How Appealing.

Prof. Berman’s first post offers some thoughts on the SG’s arguments on Blakely’s applicability.

Prof. Berman has rounded up the media coverage on his site, too.

I’m going to reserve further commentary until tomorrow (which is now today). What a day! Stay tuned.

No Booker/Fanfan decision today. Next possible opinion date: Dec. 13th.