Blakely v. Washington (02-1632), Schriro v. Summerlin (03-526), Beard v. Banks (02-1603)

June 28, 2004 Supreme Court Update

Greetings Court fans!
The Court issued 5 opinions on Thursday, leaving 7 to be issued this coming week. As you probably know by now, they issued their decision in the Cheney energy task force case, but they also issued a major Sixth Amendment opinion that impacts thousands upon thousands of criminal prosecutions across the country. I'll begin there.

The decision is called Blakely v. Washington (02-1632), and it is the latest in the line of the bitterly divided "Apprendi" cases. These Sixth Amendment cases establish rules for deciding which facts must be decided by a jury in a criminal case and which facts are mere "sentencing facts" that may be found by a judge. In Apprendi v. New Jersey (2000), the Court held that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." In this case, Blakely pleaded guilty to kidnapping his wife. Based on the facts admitted in his plea, he was eligible for a sentence of 53 months. At sentencing, however, the judge imposed an additional "exceptional" sentence of 90 months after he found that Blakely had acted with deliberate cruelty. The Court (opinion by Scalia, joined by Stevens, Souter, Thomas and Ginsburg) held that this additional sentence violated Blakely's Sixth Amendment right to trial by jury. According to Scalia, the "statutory maximum" for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant. Put another way, the "statutory maximum" is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. Because the judge here could not have imposed the additional 90 month term solely on the basis of the facts admitted in the plea, that additional term was unlawful. The rest of Scalia's opinion is an extended response to the dissents (complete with that special vicious tone he seems to reserve for responding to O'Connor). He grounds his decision on the need to give "intelligible content" to the right to a jury trial, and chides the dissents for advocating subjective and manipulable rules. He further claims that this decision does not invalidate all "determinate sentencing" schemes, like the Federal Sentencing Guidelines.

O'Connor (joined by Breyer, the Chief and Kennedy) wrote the principal dissent, and boy is she mad. O'Connor believes that this decision effectively invalidates determinate sentencing schemes, Scalia's assurances to the contrary notwithstanding. The federal government and many states adopted determinate sentencing schemes to constrain judicial discretion in sentencing and thereby bring rationality and uniformity to criminal sentencing decisions. But under Blakely , any fact that increases the upper bound on a judge's sentencing discretion is an element of the offense. Thus, facts that were previously considered only at sentencing (role in the offense, risk of bodily harm, drug quantity, etc.) now must be charged in an indictment and submitted to a jury. Given this and other implications from the decision, O'Connor contends that "it is difficult . . . to discern what principle besides doctrinaire formalism actually motivates today's decision. . . . If indeed the choice is between adopting a balanced case-by-case approach that takes into consideration the values underlying the Bill of Rights, as well as the history of a particular sentencing reform law, and adopting a rigid rule that destroys everything in its path, I will choose the former." O'Connor concludes by noting that this decision calls into doubt determinate sentencing schemes, and the criminal judgments imposed under those schemes, across the country. Her final paragraph concludes with the following lament: "What I have feared most has now come to pass: Over 20 years of sentencing reform are all but lost, and tens of thousands of criminal judgments are in jeopardy."

Kennedy (joined by Breyer) wrote a dissent to emphasize another problem with the majority's decision: it disregards the interdependence of the different branches of government. Thus, sentencing guidelines arose from a legislature that was dissatisfied with wide disparities in sentencing imposed by the judicial branch. This interplay is consistent with the Constitution's structural protections. Breyer (joined by O'Connor) wrote a separate dissent as well. He criticizes the majority for ignoring the adverse consequences of its decision, and catalogs the reform options available in the wake of the majority's decision. According to Breyer, each of these options risks impracticality, unfairness, or harm to the right to a jury trial.

In another case arising from the Apprendi line of decisions, the Court decided Schriro v. Summerlin (03-526). Here, the Court held that Ring v. Arizona (2002) does not apply retroactively to cases already final on direct review. In Ring, the Court concluded that in the capital sentencing context, Apprendi required the existence of an aggravating factor to be proved to a jury rather than a judge. Summerlin was tried and convicted before Ring, however, and thus under Arizona's sentencing scheme, a judge found the aggravating factors that made him eligible for the death penalty. In his federal habeas petition, Summerlin argued that he was entitled to the benefit of the Ring rule, but the Court (opinion by Scalia, joined by Rehnquist, O'Connor, Kennedy and Thomas) disagreed. Scalia began by outlining the general framework for analyzing the applicability of new rules to convictions that have already become final: New substantive rules apply retroactively, but new procedural rules generally do not. A procedural rule applies retroactively only if it is a "watershed rule of criminal procedure" that implicates the fundamental fairness and accuracy of the criminal proceeding. With this overview, Scalia quickly dismissed any suggestion that the Ring rule applied to Summerlin's case because it was a substantive rule. The Ring rule does not alter the range of conduct or the class of persons that the law punishes. It merely allocates decisionmaking authority for essential facts bearing on punishment, and thus is a quintessentially procedural rule. The rule is also not properly characterized as a watershed rule of criminal procedure. Summerlin argued that the rule implicated the fundamental fairness and accuracy of the criminal proceeding because juries are more accurate factfinders than judges. This, according to Scalia, is beside the point. The only question is whether judicial factfinding so seriously diminishes accuracy that there is an "impermissibly large risk" of punishing conduct the law does not reach. And in light of the reasonable disagreement on whether judges or juries are more accurate factfinders, this cannot be true. Breyer (joined by Stevens, Souter and Ginsburg) dissented. He believes that juries are important in capital sentencing because a death sentence must reflect a community-based judgment that the sentence is proper, and that a jury is significantly more likely than a judge to express the conscience of the community on the question of life or death. (He says a lot more than this, but I'll just skip the details for now.)

The Court addressed another question of retroactivity in the capital sentencing context in Beard v. Banks (02-1603). In Mills v. Maryland (1988), the Court held invalid a capital sentencing scheme that required juries to disregard mitigating factors that they had not found unanimously. In this case, the Court (opinion by Thomas, joined by Rehnquist, O'Connor, Scalia and Kennedy) held that the Mills rule does not apply retroactively. Thomas began the analysis by holding that Banks' conviction became final at the completion of his direct appeal through the state courts. The fact that the state courts exercised their discretion to consider his Mills claim on post-conviction review does not change this result. Thomas then turned to determining whether the Mills rule was in fact a "new rule." In this analysis, he considered whether the rule was dictated by existing precedent, that is, whether the unlawfulness of his sentence would be apparent to "all reasonable jurists." Thomas traced the jurisprudential roots of the Mills decision, and concluded that reasonable jurists could have differed as to whether the prior cases compelled the result in Mills. As proof, Thomas noted that the Mills case (and a later related case) had dissents. Thomas concluded by holding that the Mills rule was not a watershed rule of criminal procedure. The "watershed" category, according to Thomas, is really, really small. In fact, the only example that the Court has ever cited as the type of rule that might qualify is the Gideon v. Wainright (right to counsel) rule. The Mills rule isn't nearly as groundbreaking as Gideon, and so it does not operate retroactively. Stevens (joined by Souter, Ginsburg and Breyer) dissented. He thinks that the capital sentencing procedure used in Banks' case is highly arbitrary and unconstitutional. He would find that Mills had retroactive effect by holding that it was merely an application of the basic principle that death sentences may not be imposed under a system that permits the penalty to be "wantonly and freakishly imposed." Souter (joined by Ginsburg) dissented separately. He thinks that the Court's application of its retroactivity jurisprudence has placed too much importance on the finality of capital sentences and not enough importance on their accuracy.

I'll summarize the remaining two cases in a later email. Look for more opinions on Monday. Until then, thanks for reading.
Sandy
From the Appellate Practice Group at Wiggin and Dana. For more information, contact Sandy Glover, Aaron Bayer, or Jeff Babbin at 203-498-4400, or visit our website at www.wiggin.com.