Aggravators & Common Law Crimes

I was gobsmacked some days ago when I read in the Vera Institute September publication about Blakely (here) that the use of aggravating circumstances not specifically enumerated by statute might amount to the creation of a common law crime. (See page 6, first column, right around footnote 30). If aggravating circumstances are to be treated as the functional equivalent of elements, that is absolutely true. This is yet another example of how I keep being surprised by Blakely and my own failure to think through all of its implications.

The Vera Institute's suggestion appears to have received some support yesterday during the government's rebuttal as reported on BlakelyBlog (here):

First, [Clement] noted again that a ruling for the Respondents would mean overturning Mistretta. Such a ruling would mean that the USSC was defining crimes, and under Mistretta that is not what the USSC either can do or in fact does.

It was similarly reported by Doug Berman (here):

[Clement] also ultimately asserted that the key precedent really at stake was Mistretta, as he suggested that Mistretta itself would have to be reversed because the respondent’s argument would essentially mean that the US Sentencing Commission has functionally created elements for thousands of new federal crimes.

In the same post, Professor Berman adds his own answer to Clement's point in rebuttal:

But I think Clement is wrong when saying that extending Blakely to the federal guidelines would essentially overrule Mistretta. This claim is based on the assertion that extending Sixth Amendment rights to guideline factors would turn them into de facto elements. But because such guideline factors require judges to impose longer sentences, they truly are already de facto elements (and this is why Ex Post Facto law limits the application of new guidelines to old cases).

In Indiana, common law crimes were abolished by statute at least as early as 1843. Doe v. Methodist Hosp., 690 N.E.2d 681, 689 (Ind. 1997). Only the General Assembly can define crimes. Indiana Code § 1-1-2-2 provides: "Crimes shall be defined and punishment therefor fixed by statutes of this state and not otherwise."

Whatever the Sentencing Commission does or doesn't do, it looks awfully like Indiana trial judges, when they enhance sentences post-Blakely based on aggravating circumstances unenumerated by statute (see the catch-all aggravator provision in § 35-38-1-7.1(d), which provides, "The criteria listed in subsections (b) and (c) do not limit the matters that the court may consider in determining the sentence") are quite probably doing the forbidden thing of defining crimes. (Recall Justice Scalia's discussion, in response to Breyer's dissent, about 17-element robbery charges in footnote 12.)

If this is analysis is correct, then that is the end of the "especially heinous," "position of trust," and other aggravators of the same, non-statutory ilk. At least until the General Assembly gets (very) busy next year.