Amicus Curiae Brief — Minnesota v. Allen (No. 05-1078)

7

to their sentencing statutes. See Don Stemen & Daniel F.

Wilhelm, Supreme Court Decision Focuses State Attention on

Sentencing Regimes, in State News 21-24 (Council of State

Govt's, June/July 2005). The various proposals suggest that

these States “seem to be favoring one particular proposition:

the preservation of presumptive sentencing with the notable

addition of fact-finding. This means asking juries—not

judges —to find beyond a reasonable doubt the facts required

to justify an aggravated sentence.” /d. at 21-22. However,

the States that have adopted this position have not done so

because they believe it to be the best policy; rather, they have

responded to what they perceive to be the rule of Blakely.

More broadly, in every State contemplating sentencing

reform in response to Blakely, the scope of the Sixth

Amendment jury-trial right is a crucial factor in designing

the criminal sentencing framework. The benefits from

consideration of offender characteristics may be less

meaningful as the costs of conducting the necessary factual

inquiry rise. Similarly, States may presume that courts,

which have much broader experience than particular juries

in observing criminal defendants at trial, at sentencing, and

at probation revocation proceedings, are better positioned to

assess Offender characteristics such as likelihood of

recidivism, potential for rehabilitation, or amenability to

probation. If the Sixth Amendment requires that the

assessment of such offender characteristics be committed to

the jury rather than the court, some States may reasonably

decide to abandon consideration of such characteristics, or

abandon structured sentencing, altogether.

In short, the resolution of the question presented in

Minnesota’s petition will have a significant impact on the

States’ continuing assessments of their various sentencing

frameworks.

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Il. The Decision Below Misapplies Blakely And Conflicts

With This Court’s Decisions Recognizing The Role Of

Offender-Specific Facts In Sentencing.

The Court should grant Minnesota’s petition because the

decision below misapplies Blakely and _ erroneously

invalidates a critical feature of Minnesota’s structured

sentencing regime.

Blakely establishes that a sentencing court operating in a

structured sentencing regime may not increase a defendant's

sentence beyond the presumptive sentence based on offense-

specific facts that were not found by the jury or admitted by

the defendant. See 542 U.S. at 303-305 (holding that the Sixth

Amendment did not permit a sentencing court to depart

upward from the standard range based on the court’s own

finding that the defendant acted with “deliberate cruelty”).

Blakely does not suggest, however, that the same rule applies

where the sentencing court departs from the presumptive

sentence based on offender-specific facts such as likelihood of

recidivism or amenability to probation. These facts do not

relate in any way to the nature of “the crime the State actually

seeks to punish.” /d. at 307. Rather, they provide contextual

information for the sentencing court to consider in assessing

the “whole person and personality” of the defendant and the

propriety of a particular sentence within a_ statutory

framework. Grayson, 438 U.S. at 53.

Neither the text of the Sixth Amendment nor the historic

understanding of the jury-trial right compels the conclusion

that sentencing courts may not make their own findings of

offender-specific facts. The Sixth Amendment guarantees a

jury for criminal prosecutions, and governments prosecute

criminal conduct, not offender characteristics. There is no

sense in which a defendant's likelihood of recidivism or

amenability to probation constitutes an element of the

criminal offense, and to conflate such offender characteristics

with elements of the offense is to erase any meaningful

distinction between the conviction and the sentence. In this

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case, the State seeks to punish the offense of first-degree test

refusal, not “first-degree test-refusal by a person who is

unamenable to probation.”

This Court’s decisions have long recognized the

sentencing court's role in tailoring the sentence to the

particular offender. As this Court noted in Mistretta, federal

courts “[flor almost a century” enjoyed “wide discretion to

decide whether the offender should be incarcerated and for

how long, whether he should be fined and for how much,

and whether some lesser restraint, such as probation, should

be imposed instead of imprisonment or fine.” 488 U.S. at

363; accord id. at 364 (noting that “Congress delegated almost

unfettered discretion to the sentencing judge to determine

what the sentence should be within the customarily wide

range”). In the exercise of this wide discretion, sentencing

courts needed “the fullest information possible concerning

the defendant's life and characteristics.” Williams, 337 U.S. at

247. Since “[rleformation and rehabilitation of offenders

have become important goals of criminal jurisprudence,” id.

at 248, the Court has observed that “[t]o an unspecified

degree, the sentencing judge is obligated to make his

decision on the basis, among others, of predictions regarding,

the convicted defendant's potential, or lack of potential, for

rehabilitation,” Grayson, 438 U.S. at 47-48 (footnote omitted).

Thus, it has long been recognized that the sentencing court,

within limits, may tailor a sentence to the particular

defendant, taking account of facts that relate solely to that

defendant’s own personal history, personality, and character.

Properly understood in light of the text and_ this

traditional understanding of the Sixth Amendment jury-trial

guarantee, Blakely applies to upward departures based on

facts related to the offense, not facts related solely to the

offender. See generally Douglas A. Berman, Distinguishing

Offense Conduct and Offender Characteristics in Modern

Sentencing Reforms, 58 Stan. L. Rev. 277 (2005); Douglas A.

Berman, Conceptualizing Blakely, 17 Fed. Sent. R. 89 (2004).

F ]

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The decision below conflicts with this natural reading of

Blakely, holding instead that Blakely forbids any departure

from any aspect of a presumptive sentence based on any fact

not found by the jury or admitted by the defendant.

Indeed, under the reasoning of the court below, the Sixth

Amendment guarantees a criminal defendant a jury trial not

only on the question of which laws he may have violated, but

also on the question whether he would be a better candidate

for prison or probation, and whether retribution or

rehabilitation would be more appropriate in his case. The

Sixth Amendment has never been understood to require so

much, and this Court’s decisions do not require such a

sweeping result. E.¢., Almendarez-Torres v. United States, 523

U.S. 224, 243 (1998) (noting that likelihood of recidivism is “a

traditional, if not the most traditional, basis for a sentencing

court’s increasing an offender’s sentence”); Grayson, 438 U.S.

at 55 (reaffirming the authority of the sentencing court to

assess the defendant's “prospects for rehabilitation and

restoration to a useful place in society”).

> Respondent's argument that Apprendi itself involved a sentence

enhancement based on an offender characteristic misses the mark.

See Opp’n at 5. At issue in Apprendi was a hate-crimes statute that

authorized a sentence enhancement if the defendant “in

committing the crime” acted with animus toward groups or

individuals with specified characteristics. Apprendi v. New Jersey,

530 U.S. 466, 468-469 (2000). By its own terms, that statute focused

on the defendant's motive for committing the particular offense,

not offender characteristics that exist separate and apart from the

particular offense.

1]

Ill. The Decision Below, While Consistent With A Recent

Ninth Circuit Decision, Conflicts With Decisions From

The Highest Courts Of Other States And Illustrates

Broader Disagreement On The Impact Of Blakely.

Not only does the decision below conflict with the most

natural reading of Blakely, but it also conflicts with the

decisions of the highest courts of other States.

1. The decision below squarely conflicts with the

decision of the Supreme Court of Hawaii in State v. Kaua, 72

P.3d 473 (Haw. 2003). The defendant in Kaua challenged his

sentence on the ground that he was sentenced as a “multiple

offender” based on a finding by the sentencing court, not the

jury, that an extended term was “necessary for protection of

the public.”* The court rejected this argument, holding that

Apprendi does not require jury factfinding on issues that are

“extrinsic” to the conviction. /d. at 485. Whereas the

Supreme Court of Hawaii distinguishes “extrinsic” offender

characteristics from offense-related facts that are “intrinsic”

to the crime of conviction, the court below treats all facts the

same under Apprendi and Blakely.

The conflict on this issue is even more stark given the

Ninth Circuit's recent decision affirming a judgment granting

habeas relief to Kaua on the ground that Apprendi forecloses

any distinction between “intrinsic” and “extrinsic” facts in

sentencing. See Kaua v. Frank, 436 F.3d 1057, 1060-1062 (9th

Cir. 2006). According to the Ninth Circuit, “a jury should

have made the public protection finding.” /d. at 1062. That

of course is consistent with the decision below in this case,

but flatly contrary to the Hawaii Svupzeme Court's approach.

* Under Hawaii's sentencing regime, a defendant is subject to an

extended sentence if the defendant “is a multipie offender whose

criminal actions were so extensive that a sentence of imprisonment

for an extended term is necessary for protection of the public.” 72

P.3d at 473 n.1. Kaua admitted that he was a multiple offender. Id.

at 476.

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2. As Respondent acknowledges, the cecision below

also conflicts with the decision of the Supreme Court of

Kansas in State v. Carr, 53 P.3d 843 (Kan. 2002), concerning

the application of Apprendi to dispositional departures.

Whereas the court below held that Apprendi and Blakely bar

any upward departures from the presumptive sentence based

on judicial findings, see 706 N.W.2d at 46, the court in Carr

held that “Apprendi applies only to upward durational

departures,” not dispositional departures, 53 P.3d at 850.

According to Carr, because “[p]robation and parole are

dispositions alternate to the serving of a sentence, and

neither probation nor parole increase[s] nor decrease[s] the

sentence required to be imposed by the statute,” a

dispositional departure does not implicate the jury trial right

described by Apprendi. Ibid. Although the distinction

between dispositional and durational departures is not raised

in the question presented, this conflict illustrates the need for

clarification of the scope of Apprendi and Blakely in structured

sentencing regimes.

3. More generally, state courts are also divided on

Blakeley’s impact on structured sentencing. In addition to the

court below, the highest courts of Arizona, Colorado,

Indiana, New Jersey, North Carolina, Oregon, and

Washington have held that Blakely applies to any upward

departure from a _ presumptive sentence based on

aggravating factors found by the sentencing court. See State

v. Brown, 99 P.3d 15, 17-18 (Ariz. 2004); Lopez v. People, 113

P.3d 713, 726 (Colo. 2005); Smylie v. State, 823 N.E.2d 679,

683-684 (Ind. 2005); State v. Natale, 878 A.2d 724, 737-739 (N.j.

2005); State v. Allen, 615 S.E.2d 256, 264-266 (N.C. 2005); State

v. Dilts, 103 P.3d 95, 98-99 (Or. 2004); State v. Huglies, 110 P.3d

192, 201-204 (Wash. 2005). Specifically, the Supreme Court of

Washington has held that Blakely forbids a sentencing court

to depart from a presumptive sentence based on offender-

specific findings that the defendant lacked remorse, held a

disregard for the law, and likely would not benefit from

rehabilitation. Hughes, 110 P.3d at 202-204.

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By contrast, the highest courts of California and

Tennessee have held that judge-found facts may support

upward departures from a presumptive sentence where the

court retains discretion within the sentencing regime to set a

sentence within the statutory range. See People v. Black, 113

P.3d 534, 545-548 (Cal. 2005); State v. Gomez, 163 S.W.3d 632,

658-662 (Tenn. 2005). According to the Supreme Court of

California, “Apprendi, Blakely, and Booker all make clear that

judicial factfinding is acceptable in the context of a

discretionary sentencing decision.” Black, 113 P.3d at 547.4

These conflicts are intolerable given that thousands of

criminal defendants are sentenced every day throughout the

States and that the validity of their sentences may depend

upon the proper interpretation of Blakely. Just as Booker-

based challenges have flooded the federa! courts of appeals,

Blakely-based challenges have flooded state appellate courts.

The conflicts among state courts about the scope of the jury-

trial right in structured sentencing regimes generally, and

with respect to offender characteristics specifically, likely will

not be resolved absent a definitive ruling from this Court.

The conflicts on these issues are unlikely to abate and

therefore ripe for ultimate resolution by this Court.

kkkeaek

The States bear the primary responsibility for fashioning

criminal sentencing procedures, and fashioning such

procedures is complicated work. Just as there are various

philosophical approaches to punishment, the States have

adopted various frameworks for criminal sentencing. This

4 The Court will consider application of Blakely to California’s

sentencing, regime in Cunningham v. California, No. 05-6551. Given

that California’s sentencing regime, like Minnesota’s, authorizes

the sentencing, court to increase a sentence based on its own

findings of identified factors, the decision in Cunningham might

influene the resolution of this case. But it is unlikely to be

dispositive.

14

diversity is useful, for one State’s experiment with

determinate (or indeterminate) sentencing may uncover

particular practical flaws that lead to improvements in other

States. See Blakely, 542 U.S. at 327 (Kennedy, J., dissenting)

(noting “the interest of the States to serve as laboratories for

innovation and experiment’). As they experiment with

different approaches, however, the States must know the

contours of applicable Sixth Amendment limitations,

especially with respect to basic issues such as the role of

offender characteristics. By granting Minnesota’s petition

and deciding this case, the Court can provide the needed

certainty.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted.

STEVEN J. TUCKER GENE C. SCHAERR

Prosecuting Attorney of Counsel of Record

Spokane County, Washington STEFFEN N. JOHNSON

1100 West Mallon Avenue JEFFREY M. ANDERSON

Spokane, WA 99260 Winston & Strawn LLP

(509) 477-3662 1700 K Street, N.W.

Washington, D.C. 20006

(202) 282-5000

Counsel for Amici Curiae

MARCH 2006

NORM MALENG

Prosecuting Attorney of King

County, Washington

516 3rd Avenue

Seattle, WA 98104

(206) 296-9000

DAVID W. MARQUEZ

Attorney General of Alaska

P.O. Box 110300

Juneau, AK 99811

(907) 465-2133

PHILL KLINE

Attorney General of Kansas

120 SW 10th Ave., 2d Floor

Topeka, KS 66612

(785) 296-2215

CHARLES C. FOTI

Attorney General of Louisiana

P.O. Box 94005

Baton Rouge, LA 70804

(225) 399-5190

Mik&s MCGRATH

Attorney General of Montana

Department of Justice

P.O. Box 201401

Helena, MT 59620

(406) 444-2026

15

GEORGE J. CHANOS

Attorney General of Nevada

Nevada Department of

Justice

100 North Carson Street

Carson City, NV 89701

(775) 684-1112

HARDY MYERS

Attorney General of Oregon

1162 Court Street N.E.

Salem, OR 97301

(503) 378-4400

WILLIAM K. SORRELL

Attorney General of Vermont

109 State Street

Montpelier, VT 05609

(802) 828-3171

ROB MCKENNA

Attorney General of Washington

1125 Washington Street

P.O. Box 40100

Olympia, WA 98504

(360) 753-6200