Conceptualizing Blakely
As noted before here, I have been starting to conceptualize Blakely in terms of an offense/offender distinction, and thus I was pleased to see that a New Jersey appellate court in NJ v. Abdullah, 2004 WL 2281236 (N.J. Super. A.D. Oct. 12, 2004), relied on an offense/offender distinction when applying Blakely (details here). The Abdullah court’s discussion of this distinction is a bit truncated, and I have now had a chance to write up my views more formally. Here is the first part of an article, entitled “Conceptualizing Blakely,” that I am working on for the next issue of the Federal Sentencing Reporter:
The Blakely rule, its underlying principle, and its key limit could be better understood and appreciated if the Supreme Court linked its rulings to the constitutional text it purports to be applying. Notably, the jury right at issue in the Blakely line of cases actually appears twice in the U.S. Constitution. Section 2 of Article III provides: “The trial of all crimes, except in cases of impeachment, shall be by jury.” And the Sixth Amendment, in pertinent part, provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” In addition to highlighting the favored status of the jury trial right, the language of these provisions helps to chart the proper metes and bounds of the right itself.
The Constitution frames the jury trial right in terms of the trial of “crimes,” which are the basis for a “prosecution” of “the accused.” This language connotes that the jury trial right attaches to all offense conduct for which the state seeks to impose criminal punishment, but also connotes that the jury trial right does not attach to any offender characteristics which the state may deem relevant to criminal punishment. That is, all facts relating to offense conduct which the law expressly makes the basis for criminal punishment are subject to the jury trial right; such facts are in effect fundamental parts of those “crimes” which the state wishes to be able to allege against “the accused” in a “criminal prosecution.” Put simply, the state accuses and prosecutes persons for what they do, not for who they are; consequently the jury trial right concerns offense conduct while having no application to offender characteristics.
Stated another way, the jury trial right ensures that a defendant can always demand that a jury determine whether the defendant in fact did whatever offense conduct the state seeks to punish. But once offense conduct has been properly established — either through a jury trial or a defendant’s admission — a judge may properly consider whether and to what extent offender characteristics may justify more or less punishment in response to the properly established offense conduct. And, critically, a state may structure through statutes or guidelines how a judge considers offender characteristics without implicating the jury right.
In short, there is an essential offense/offender distinction at the heart of the jury trial right. In addition to being faithful to the text of the Constitution, the offense/offender distinction resonates with the distinctive institutional competencies of juries and judges in the context of sentencing determinations. Juries can reasonably be expected to determine offense conduct at trial; the state should have to prove to a jury beyond a reasonable doubt exactly what “the accused” did. But judges are generally better positioned to consider offender characteristics at sentencing; the state should be allowed to offer (potentially prejudicial) information concerning an offender’s life and circumstances directly to a judge to assist in determining an appropriate punishment. (Of course, the state is certainly permitted to provide for jury consideration of offender characteristics, but the Constitution does not demand as much.)
Thoughts, anyone?