Wednesday, January 14, 2009

Ice is Here--and Chills the Spirit

Oregon v. Ice was decided today. (Here at Cornell). 5-4 with a wacky split to say that juries do not need to find facts necessary to impose consecutive sentences. Roberts, Scalia, Souter, and Thomas were the four.

I haven't read the opinions. The result is certainly disappointing, especially when you consider how close--and weird--the vote was. I thought Ginsburg and Stevens were true Blakely believers. (We know after Booker that Justice Breyer is a traitor to the cause.) And maybe they are and just don't think the principle applies to consecutive sentences.

Although I don't blog about my own cases, I will say that I am going to have to abandon some pending post-conviction claims based on Blakely and consecutive sentences.

This leaves two Blakely shoes to drop--well, a boot and a slipper. The boot is retroactivity--full, to the beginning of time, or merely to Apprendi. ("As our precedents make clear . . ." Justice Scalia wrote in Blakely.)

The slipper is whether juvenile adjudications without jury trials are "prior convictions." Most courts seems to have said, "Yes." I do not think that can possibly be correct and that the majority of courts that take the position are dodging Blakely similarly to the way they dodged Apprendi for years--except Kansas.

More about Ice after I actually read the opinions.