Smylie: The AG's Reply

Here is the State's reply to Smylie's cert. petition. It's not a pretty copy, but readable enough for the committed. (I have also put it in the sidebar below the link to Smylie's petition.)

After finishing the section about two "grievous procedural blemishes," the first of which (waiver) metapmorphoses into a "hiccup," at page 4, the State makes the quite extraordinary claim that Smylie's petition "does nothing more than challenge the Indiana Supreme Court's interpretation of Indiana's sentencing statutes." I suggest that the claim is extraordinary because of the purpose for which it is offered: to show that the case presents no "substantial federal question." Exactly the same thing could be said of cert. petitions arising from the Tennessee Supreme Court's decision in Gomez and the California Supreme Court's decision in Black. In fact, every state application, avoidance, or evasion of Blakely is always necessarily going to depend chiefly upon state court interpretations of sentencing statutes.

Somewhat more interesting is that the Indiana AG wields as a sword the fundamental indencency of Smylie with respect to consecutive sentences. Recall in Smylie that the Indiana Supreme Court said: "But our statutes do not erect any target or presumption concerning concurrent or consecutive sentences. Where the criminal law leaves sentencing to the unguided discretion of the judge there is no judicial impingement upon the traditional role of the jury.' Blakely, 542 U.S. at __, 124 S.Ct. at 2540." Of course, before Smylie, and before the General Assembly maximally Booker-ized the sentencing statutes last April, for more than 20 years, there had been a requirement, imposed by the Indiana Supreme Court, itself, as a gloss on the sentencing statutes, that a judge find an aggravating circumstance before imposing a discretionary consecutive sentence.

Now the AG says to the United States Supreme Court--and it might be correct--that the Court is stuck with the Indiana Supreme Court's Smylie interpretation, "[r]egardless of whether that constitutes a change from prior interpretations of that statute." Page 5. The AG returns to this argument and the notice aspect of Blakely on page 9, relying on language from the New Jersey Supreme Court's decision in Abdullah: "Under such a non-presumptive system, a defendant has no entitlement or legal right to concurrent sentences; every defendant who commits multiple crimes knows that by those actions alone, he risks receiving consecutive sentences."

Now recall the functional test of Blakely itself, where Justice Scalia points out that had the judge there imposed "the 90-month exceptional sentence solely on the basis of the plea, he would have been reversed." At the time Smylie was sentenced--at the time he committed the crimes to which he pled guilty-- the law in Indiana was and had been since 1982 that Smylie's consecutive sentences would have been reversed on appeal, unless the trial judge had found an aggravating circumstance. So much for the AG's notice argument. (Perhaps Smylie should have raised an equal protection claim--or even an ex post facto claim, come to think of it.)

But none of the above really matters if Blakely simply doesn't apply to consecutive sentences, because they are separate sentences. (There is no reason that the Indiana Supreme Court could not simply have said as much in Smylie without adopting Stalin's approach to history. It's not as though there is great disagreement on this point among the courts of the land.) The heart of the argument is whether the Indiana AG is correct at page 7, where he says: "Running individual sentences for separate crimes consecutive to each other does not increase the penalty that is imposed for any particular crime." Superficially and intuitively, that seems correct, especially if one focuses on the now-famous phrase, "statutory maximum." The arguments to the contrary are pretty tortured.

In any event, Smylie was not among the cases in which cert. was granted (or denied, as far as I can tell) today. See this post on SCOTUSBlog with summaries of the cert. grants and this link (thanks to SCOTUSBlog) to the order list itself. According to SCOTUSBlog here, next Monday is the next day for the Court to issue orders. The order list was all grants, so there must be a bucketful of denials waiting to rain down. (In this post Tom Goldstein of SCOTUSBlog said that he had reviewed something like 500 cert. petitions that were up for consideration at Monday's conference.) The odds have to be that Smylie is in the bucket.

Penultimately, I note that the new Indiana blog on the block, Joshua Claybourn's Indiana Barrister, got a mention in this post on SCOTUSBlog for this report about a Senate bill to authorize televising Supreme Court arguments. Chapeau.

Ultimately, it's time to make post-midnight naleśniki for a certain little guy's lunch tomorrow.

Smylie: The AG has responded after all.

I have word that the Indiana Attorney General has, in fact, filed the requested response to Smylie's cert. petition. I hope to have it available here tomorrow. Apparently it is 10 pages, much of which is spent on procedural issues--waiver and mootness, in particular--which ought to be non-issues, since the Indiana Supreme Court didn't seem to care about them. (A mootness argument, because Smylie has already served his sentence, seems especially silly to me in light of the recurring problem exception to mootness taken together with the broader importance of Blakely's application vel non to discretionary consecutive sentencing.)

Also, I have consulted someone who has done a great deal of Supreme Court litigation. She says that the folks in Washington don't ask for responses except when it is very likely that cert. will be granted. I guess we'll see soon enough--and it certainly will be interesting if it is. For the reasons set out in the previous post, I can hardly imagine it. But I could not have imagined Gomez or Black or any of a number of decision either, so I am willing to confess to frequent failures of imagination.

Smylie: Tomorrow's the Day.

Well, a glance at the Smylie Supreme Court docket shows that Indiana has still not filed the requested response to Smylie's cert. petition. That is puzzling to an outsider like me. Maybe it happens all the time.

Anyway, tomorrow is conference day for Smylie. I see over at SCOTUSBLOG that Smylie is not among the cases that the folks there think are likely to have cert. granted. If cert. were to be granted, I think I can easily see a relatively brief per curiam opinion more or less flatly saying that the Jones-Booker line of cases simply does not apply to discretionary consecutive sentencing. That would at least settle whatever uncertainty may be out there on the subject--which is not much.

An opinion saying that Blakely does apply to discretionary consecutive sentences I find much harder to imagine. First, the Court will almost necessarily become entangled in 20 years of state court interpretation of statutes that do not, themselves, require judicial fact-finding to support consecutive sentences. So it is not clear to me what possible clear general application a Smylie v. Indiana decision would have. Even if such a decision had some arguable general application to the Blakely-affected and Blakely-afflicted, it would not take much for courts elsewhere to distinguish, even plausibly, their consecutive sentencing schemes from Indiana's.

But second--and perhaps this is just another way of putting what was first--Jones, Apprendi, Ring, Blakely, and Booker share one striking feature, it seems to me: they are based on law and principles just about older than dirt. They are really quite straightforward cases that require no fancy dancing. (With respect to Booker, I am speaking of Justice Stevens' opinion.) One may disagree with the history or the result as, obviously, Justice O'Connor has repeatedly. But there is nothing complex, except in various entailments, about what the cases say or even why they say it. And I think that's why there have been five justices who have agreed five times now about the law and the principles involved.

A Smylie opinion applying Blakely to discretionary consecutive sentencing would not be simple; and I just doubt that the five votes would hang together when faced with any degree of complexity. One only has to look at Justice Ginsburg's departure for the Breyer remedial opinion in Booker to detect a definite fragility in the crystal.

I haven't a clue what a new Chief Justice Roberts will contribute to the debate or the vote. The uninteresting assumption has to be that he will fit more or less snugly into Chief Justice Rehnquist's now-missing place in the puzzle. I'm ready to be surprised.

SL&P: An Amazing State Blakely Page

Doug Berman at Sentencing Law & Policy has created this terrific page with State by State and issue by issue links to state Blakely resources. Does this guy ever sleep? I suspect elves.