Criminal Procedure : Week of March 11 2008

11 March: Notes from Beth

12 March

• Apprendi and Blakely: hard to reconcile
• Williams: the judge can consider any factors whatsoever: all facts are relevant.
• Today, maximum sentences are off the charts, and we have new guidelines that specify the actual maxima. The law prevents a judge from sentencing above X, unless there are additional facts that escalate it. But these facts are found only by a judge, on the preponderance of the evidence.
• Apprendi: sentencing enhancer for hate crime. But this isn't found beyond reasonable doubt (e.g., Winship). Why doesn't due process require that a judge in WI consider only facts found beyond reasonable doubt by a jury.
• So, can you even have a guideline sentencing scheme, constitutionally? Yes, that seems to be OK. Does Winship require proof beyond reasonable doubt of any factor affecting punishment?
• Blakeley: The judge can't use non-contested elements to go beyond the maximum penalty. State of WA. Judge aggravates the sentence (kidnapping was done with cruelty, a factor that was not a finding by the jury). So the judge's finding moved the sentence up from a 10 year maximum to 20 years.
• The guideline structure is within the statutory maxima, but aggravating factors can raise the punishment beyond the maximum of the crime for which the defendant has been convicted.
• Other than the fact of a prior conviction, any fact that increases the sentance beyond a statutory maximum should be found by a jury beyond a reasonable doubt.
• Why is this a 6a issue, and not 14a? Why is this a trial by jury issue and not a standard of proof issues? It's reserved to the jury to make decisions of guilt or innocence: juries stand between judges and offenders-- it's a limitation on judicial power. Anyway, Gaudin and Winship don't mention 6a: they're all 14a. And now all of a sudden 6a comes into play for us.
• This is because an aggravating factor essentially defines a new crime: crime+factor. There's a new maximum, so these factors must be put to the jury.
• In Apprendi, there's a reference to Mullaney: the presence or absence of heat of passion was a sentencing factor, said ME, and the USSC said no. O'Connor says about the indeterminate system: hey, there's a whole lot of fact-finding going on there too. The question is whether there's a legal right to a lesser sentence unless some fact exists.
• Booker and Fanfan?

March 13

• Because Booker requires courts to take account of the guidelines, is that the presumptively correct sentence? Is that a fact now to be overcome by other evidence? Is a sentence outside the range presumptively unreasonable?
• Trial courts pretty much follow the guidelines, still, because it's too puzzling to know what to do.
• Judges are risk averse, and very few have experience sentencing under an indeterminate system.
• Back to the sentencing of Jane Greene. If we didn't have the guidelines, what facts would be relevant to determining her sentence? Is it better or worse that she robber her own bank? Does she need to be punished or do we need to punish her? <-- different from she "should be punished"
• Note that once we start considering factors (e.g., is this person a single parent) relevant to sentencing, we're individualizing sentencing again.