Monday, June 26, 2006

Recuenco: The Bad News & The Good News

Recuenco is here . . . here. The Court holds 7-2 that Blakely error is subject to Chapman harmless error analysis. That's the bad news that I have a hard time understanding for all the reasons set out in Justice Ginsburg's quite detailed and powerful dissent.

The really good news is the forcefulness with which Justice Thomas's opinion restates that sentencing factors, other than the fact of a prior conviction, are to be treated just like traditional elements. An issue that has yet to be litigated in Indiana, at least, as far as I know, is whether the use of sentencing factors not specifically enumerated by statute, amounts to the forbidden creation of common law crimes. I think Recuenco strongly suggests that it is--or was, under the old sentencing regime.

After reading theThomas and Ginsburg opinions, I wonder whether Recuenco raised the correct issue on appeal. Blakely's Sixth Amendment aspect may be subject to harmless error analysis--obviously, after Recuenco it is.
Under the lens of a Sixth Amendment jury claim, the facts of Recuenco may indeed be indistinguishable from Neder, as Justice Thomas says.

But what about Blakely's Fifth / Fourteenth Amendment notice aspect? It is absolutely clear that Recuenco, unlike Neder, had no notice in any form, and certainly not in the charge, that he would be subject to the mandatory firearm enhancement. (Again, see Justice Ginsburg's amazingly complete and compelling rendition of the facts.) Would the result be different if someone in Recuenco's position claimed lack of notice in violation of the Due Process Clause? If sentencing factors are to be treated exactly the same as traditional elements, I think it would have to be.

I do have a question about Justice Ginsburg's dissent that maybe someone can answer. She says that Recuenco's enhanced sentence was obtained in violation of the Fifth and Sixth Amendments made applicable to the States by the Fourteenth Amendment. Which provision of the Fifth Amendment does she have in mind? The Fourteenth Amendment has its own Due Process Clause. Here's the Fifth Amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The indictment requirement does not apply to the States. Why does she need the Fifth Amendment at all? Is it because, in fact, there is a hidden double jeopardy claim here: that Recuenco, having been convicted of a lesser offense without the enhancement, was then "convicted" of a greater offense that included the enhancement?

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