Blakely v. Washington

 Posted on August 13,2004 in Uncategorized

Lately I've been fielding lots of calls from people whose loved onesmight be affected by the Supreme Court's decision in Blakely v. Washington.

In a nutshell, Justice Scalia wrote in Blakely that, under Washingtonstate's sentencing guidelines, it was unconstitutional for the judge toincrease Mr. Blakely's sentence above the punishment authorized by thefacts found by the jury.

The consensus in the federal criminal law community (defense lawyers aswell as judges and prosecutors) is that Blakely will apply toinvalidate the federal sentencing guidelines (which allow the judge tofind things like drug quantity by a preponderance of the evidence, andpunish based on these findings).

Of all the circuit courts of appeals that have answered the question,"does Blakely apply to the federal sentencing guidelines?" only theFifth Circuit has said "no." In October the U.S. Supreme Court will behearing arguments on the question, and will likely answer it before theend of the year.

I would guess that 95% of the people in federal prison would, if theycould get back into court (that is, present the issue to a judge),benefit from Blakely. The problem at this point is getting back intocourt.

Most of my callers have family members who have been in prison for awhile. The time for them to file a direct appeal (to the circuit courtof appeals) and a 2255 (in the trial court) have passed. To fileanother 2255 (or a late 2255) they need one of two things: (1) newlydiscovered evidence of actual innocence; or (2) a new rule ofconstitutional law, made retroactive by the U.S. Supreme Court.

The Supreme Court has not made Blakely retroactive. They may do so.Until then, I think Apprendi and Blakely should be read to redefine"actual innocence" more broadly than "innocence of the chargedoffense." Blakely suggests that factors that increase punishment areactually elements of the offense that need to be proven beyond areasonable doubt. So possession of 15 kilograms of cocaine, forexample, is actually a different (greater) offense than possession of 5kilograms of cocaine.

If there is newly-discovered (in the year before filing the 2255)evidence that the defendant was only responsible for 5 kilograms,rather than 15 kilograms, then he may be actually innocent of theoffense for which he was punished (possession of 15 kilograms ofcocaine), but still guilty of the lesser offense (possession of 5kilograms of cocaine). Such newly discovered evidence creates a goodargument for a defendant to get back into court on a successor 2255.