More on the Proposed Aggravating Circumstances

An astute lawyer has pointed out that the new proposed aggravating circumstance for violating a protective order is already the independent crime of Invasion of Privacy. Ind. Code § 35-46-1-15.1. It's a Class A misdemeanor or a Class D felony if the person already has an unrelated conviction for Invasion of Privacy.

In my post about the Sentencing Commission's proposed aggravating circumstances (here), I overlooked this, saying that this particular aggravating circumstance could be prosecuted as indirect criminal contempt. The effect of this aggravating circumstance can be quite dramatic. In a B felony prosecution, the aggravating circumstance could be used to enhance a sentence by 10 years while the independent, A-misdemeanor variety of the independent crime could only produce a year's sentence. That is, in a B-felony case alone, with a violation of a protective order, a 20-year sentence could result. If the misdemeanor Invasion of Privacy were charged independently together with the B felony and there were no other aggravating circumstances, the maximum possible consecutive sentences would total 11 years.

I am not particularly well-versed in the intricacies of the federal Sentencing Guidelines. I believe, though, that there is a two-level enhancement for obstruction of justice or perjury. See United States v. Sheikh, 367 F.3d 683, 686-87 (7th Cir. 2004) ("A court may impose a two-level enhancement under U.S.S.G. § 3C1.1 if 'the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense of conviction.' Perjury is the sort of conduct that may warrant an obstruction of justice enhancement. (Some citations omitted).). That extra time imposed for the two-level bump may or may not correspond roughly to what an independent conviction for obstruction or perjury would produce. In any event, it is only a two-level bump. Under Indiana's sentencing scheme, a single aggravating circumstance can subject someone to a maximum sentence. Wooley v. State, 716 N.E.2d 919, 932 (Ind. 1999); accord Jordan v. State, 787 N.E.2d 983, 997 (Ind. Ct. App. 2003).

After Blakely, the State is going to have to "charge" and prove to a jury the elements of Invasion of Privacy beyond a reasonable doubt regardless of whether it is an aggravating circumstance or independently charged. Why should a sentence be potentially 9 years longer because a prosecutor chooses to treat Invasion of Privacy as an aggravating circumstance instead of an independent crime? (And the disparity, of course, would be even more dramatic in an A-felony or murder case.)