Reports on the Argument

I didn't start blogging to do news, but Blakely, like death, is different. As Doug Berman reports at SL&P, two great reports are up from Jason Hernandez of BlakelyBlog (here) and Howard Bashman at How Appealing (here). Jason's report (Part I) deals only with the government's argument. My favorite moment from his report is the following:

This issue quickly turned to a discussion of Mistretta. Mr. Clement argued that if Respondents were to prevail the Court would have to overturn Mistretta. However, in response Chief Justice Rehnquist stated that Mistretta would have been decided the other way if the premise of the case---that the USSC was not doing the work of Congress---was found not to be true. And that was the end of that line of argument.

That really put the kibosh on the argument over which a lot of trees have lost their lives these last months: that the Guidelines survive because of the (very) peculiar, quasi-judicial status of the United States Sentencing Commission.

One central issue that crosses the federal-state boundary is what kind of fact is a Blakely fact? Here a paragraph from Jason's report about Justice Breyer's questioning about Blakely facts:

Finally, Justice Breyer seemed to "throw a bone" (Jason's words) to the Petitioners by laying out four types of "facts" that would be especially difficult for a jury to find if Blakely were to be applied to the USSG: 1) cases where enhancements involve complicated applications of the guidelines (e.g., grouping); 2) cases where things happen during trial that affect the sentence (e.g., perjury); 3) provisions or enhancements that are too hard for the jury to understand; and, 4) provisions that are too difficult to explain to a jury (not quite certain how this is different, perhaps Jason can clear this up tonight). Mr. Clement agreed, and added that, for example, it would be difficult to explain "relevant conduct" to a jury.

The Guidelines are a pretty complicated creature and sentencing in Indiana a simpler affair. Type 1 facts just don't exist here. With respect to Type 2, I don't think I have ever seen an Indiana case, either reported or in person, in which a sentence was enhanced for conduct during trial. I'm not sure the Indiana Constitution would permit it, and I am not sure why the United States Constitutions does. (Isn't that what Scalia said in Blakely itself?)

Type 3 facts in Indiana? Howard Bashman's report uses "relevant conduct" as an example. Although I understand "relevant conduct" imperfectly at best, the closest thing we have that I can think of is the specific way a crime was committed. (This is not what relevant conduct is, by the way.) That is, as in Blakely, for example, a sentence is enhanced because it was committed with deliberate cruelty. This is usually expressed in Indiana sentencing jargon as an "especially heinous" crime, and pronounced in courtrooms across the state as if it were spelled "heinious." It seems to me that juries are especially well-suited to determine if a crime was especially heinous.

As for Type 4, if the basis of an enhancement is too hard for a prosecutor to explain to a jury, should it be the basis of an enhancement in the first place? Same question for Type 3, where the basis is too hard for a jury to understand. To the extent that due process notice concerns underly the Apprendi-Blakely line of cases, I would ask the question: How much notice before committing a crime can anyone have that a sentence will be enhanced on a particular basis, if the basis of the enhancement is either too hard to explain to a jury or too hard for a jury to understand? (Recall in Blakely, Justice Scalia wrote: "In a system that says the judge may punish burglary with 10 to 40 years, every burglar knows he is risking 40 years in jail.")

Another Blakely fur ball Indiana shares with the federal system is the absence of statutory authority for non-capital sentencing juries. Here is the report from Jason about Justice Kennedy on the subject:

Kansas-style bifurcation was discussed briefly, with Mr. Clement claiming that such a solution would be judicial lawmaking and a violation of separation of powers. In response, Justice Kennedy stated his view that the judicial enactment of bifurcation didn't seem like too much judicial lawmaking to him.

Recall Judge Posner's comment at the end of Booker, saying that a sentencing jury might have to be empaneled on the case's return to the district court:

There is no novelty in a separate jury trial with regard to the sentence, just as there is no novelty in a bifurcated jury trial, in which the jury first determines liability and then, if and only if it finds liability, determines damages. Separate hearings before a jury on the issue of sentence is the norm in capital cases.

No, no novelty in the procedure, perhaps. But in the two examples he gives, the procedure is either authorized by rule, I believe, or compelled by statute.

Could it be that death is not so different after all?