Tuesday, October 14, 2008

Blakely & Consecutive Sentences: Oregon v. Ice

Oregon v. Ice was argued in the U.S. Supreme Court today. Does Blakely apply to consecutive sentences if the finding of additional facts are required to impose sentences consecutively?

The transcript of the argument is here (PDF). Doug Berman's take on the case is here. (Sentencing Law & Policy). Kent Scheidegger's take is on the argument is here. (crime & consequences).

I have not read the transcript yet. I am also agnostic on the subject.

Indiana still requires the finding of additional facts to impose consecutive sentences, even after the 2005 statutory amendments that did in Blakely's Indiana sojourn.

Smylie, of course, said that Blakely does not apply to consecutive sentences. So if Ice wins, what happens here? Probably almost nothing. That the Indiana Supreme Court will have gotten it wrong won't make much difference to almost all the Blakely claimants. Their cases are final. And as I am thinking about it now, I'm not sure how a Blakely claim regarding consecutive sentences can be revived either by post-conviction proceeding or by fed habeas. I'll have to think about that for a while more, though.

Of course, the game would change considerably if the Supremes got around to saying that Blakely was fully retroactive. In Indiana at least, it should be. Blakely raised the standard of proof for aggravating circumstances from practically nothing to beyond a reasonable doubt. That is, from my particular corn field, Blakely looks a lot like In re Winship for sentencing facts. That should get retroactivity for Blakely by even Indiana's version of Teague.

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