Monday, November 15, 2004

Aggravators as Elements: Be Careful What You Wish For?

Today and tomorrow I will fulfilling my CLE duties in Indianapolis, so I am not sure what I will manage to post before Wednesday--almost an eternity in Blakely World.

Let me depart for Indianapolis, leaving the following conundrum.

Recall from the arguments in Heath and Smylie last Wednesday that Aggravating Circumstance as Element played a prominent role. This should not be surprising, since Blakely, Ring, Harris, and Apprendi all feature much language and reasoning to lead one to believe that aggravating circumstances that increase punishment beyond what is authorized by a jury's verdict are now to be treated as elements. That treatment has some potential dazzling benefits, substantive and procedural, for defendants.

Recall also, though, that the dissenters in Blakely, especially Justice Breyer, were less than convinced that defendants would, in the final analysis, be happy with Blakely's result. I want to take Justice Scalia's and Justice Breyer's exchange about 17-count robbery indictments to illustrate one possible less-than-thrilling result for defendants, if the "aggravating circumstances are elements" argument is taken to one logical conclusion.

Let us say that plain robbery has 3 elements and there are 14 potential aggravating circumstances in a robbery case. So one could have, theoretically, a 17-count robbery indictment or information. But what if, instead of a 17-count robbery information, a prosecutor were to file an information with 14 separate robbery counts, each containing the 3 elements of plain robbery plus 1 aggravating circumstance? If aggravating circumstances are now to be treated as elements, Blockburger would not prevent a prosecutor from getting 14 convictions and sentences. Each conviction would be based on an element lacking in all 13 others.

There may be provisions of a state's constitutional or statutory law that would prevent this result. I do not understand Indiana double jeopardy analysis after Richardson, Spivey, and a host of other cases, so I express no opinion on the restraint they might place on such a prosecutorial maneuver. I have been told that this couldn't happen in New Jersey.

But I don't think there is any federal restraint even on 14 consecutive sentences in such a situation.

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