Formalism meets functionality: An Ohio case study

Many have previously noted the formalism in the Blakely/Apprendi rule, often while highlighting ways legislatures might evade the rule’s strictures. (Consider this commentary on Blakely by Professor Sherry Colb and recall that Justice O’Connor’s dissent in Apprendi stressed these concerns.) Though only time will tell if we will see legislative efforts to evade the Blakely rule, in the meantime Blakely‘s formalism will create a host of challenging questions (headaches?) for functional sentencing law.

Indeed, as I reflect on modern sentencing reforms, I have come to think that Blakely is so consequential and also so confusing because functionality, not formalism, is the hallmark of many facets of guideline sentencing. For example, as noted in this US Sentencing Commission discussion paper, the controversial “relevant conduct” rules in the federal system were devised as a functional solution to the dilemmas of both real-offense and charge-offense sentencing. More broadly, judges have routinely been placed at the center of guideline sentencing systems because judges seem functionally well suited to make the many nuanced fact and value judgments that are implicated in sentencing decisions. But now, says the Blakely court, regardless of who might be the most functional fact-finder, the Sixth Amendment formally demands that any fact (other than a prior conviction) which can increase a defendant’s effective maximum sentence must be found by a jury or admitted by the defendant.

As I reviewed the very interesting Ohio opinions in State v. Taylor and State v. Quinones (details here), I came to appreciate how challenging it will be in Ohio to map Blakely‘s formalism on to Ohio’s functional sentencing provisions. Ohio has an interesting structured sentencing system which avoids grids by establishing basic (and relatively broad) sentencing ranges for felonies of different degrees. Then, after setting forth these ranges, Ohio Revised Code § 2929.14 has these interesting (and functionally sensible) provisions:

(B) Except [under certain specified circumstances] the court shall impose the shortest prison term authorized for the offense … unless (1) The offender was serving a prison term at the time of the offense, or the offender previously had served a prison term [and/or] (2) The court finds on the record that the shortest prison term will demean the seriousness of the offender’s conduct or will not adequately protect the public from future crime by the offender or others.
(C) Except [under certain specified circumstances], the court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense … only upon offenders who committed the worst forms of the offense [or] upon offenders who pose the greatest likelihood of committing future crimes….

In other words, it seems that Ohio’s sentencing laws require a judge to impose the statutory minimum sentence unless he or she makes certain findings under 2929.14(B), and a judge may not impose the statutory maximum sentence unless he or she makes additional findings under 2929.14(C). In addition to being impressed with the elegant good sense of this system, I am struck by how hard it is to understand exactly what Blakely means, or might mean, for these provisions.

At first blush, because additional “findings” are required for imposing more than the minimum sentence and for imposing the maximum sentence, it would seem that Blakely is implicated every time an Ohio judge seeks to impose a sentence above the statutory minimum and/or the statutory maximum. This seems to be the instinct of the court in State v. Quinones, 2004 WL 1903250, 2004-Ohio-4485 (Ohio App. Aug. 26, 2004), which vacated and remanded an imposed maximum sentence for “resentencing in light of Blakely” after noting that a jury “did not make a finding that Quinones had committed the worst form of the offense or that he posed the greatest likelihood of recidivism, nor did he admit to either.”

However, the findings required by Ohio law under 2929.14(B) and (C) do not all look like classic “factual” findings. Deciding what sentence might “demean the seriousness of the offender’s conduct” or what behavior consitutes the “worst form of the offense” seems like a value judgment more than a factual finding. (Or maybe this should be called a mixed question of sentencing fact and law.) Moreover, these judgments might be made solely, or at least largely, on the basis of facts found by the jury at trial or admitted by the defendant in a plea agreement. Thus, upon reflection I can see some merit in Judge Corrigan’s suggestion in State v. Taylor, 2004 WL 1900333, 2004-Ohio-4468 (Ohio App. Aug 26, 2004) (details here), that these provision of Ohio law might be able to skate around Blakely.

Any additional thoughts from Ohioans out there (who I know are reading based on this lengthy and insightful comment)?