The 2d Circuit’s recent Apprendi habeas ruling and distinguishing finding offense facts from making sentencing judgments
The Second Circuit Blog today has this interesting commentary on the Second Circuit’s notable ruling late last week concerning Apprendi‘s applicability to New York’s persistent felony offender statute in Brown v. Greiner (basics here). That commentary laments that “too much has been made of this exceedingly narrow decision,” and it correctly emphasizes that the Second Circuit’s ruling was applying AEDPA habeas standards and that Brown “is limited to cases that became final before any of the post-Apprendi cases had been decided.”
The lengthy critical discussion of Brown at the Second Circuit Blog merits a close read, and it concludes by noting that New York’s highest court has a case pending on direct appeal that will require it to address directly whether New York’s persistent felony offender statute is constitutionally sound in light of the post-Apprendi decisions in Ring and Blakely.
In a future post (and in a future article with the working title “Conceptualizing Booker“), I hope to explain why the ruling in Brown is perhaps not quite as “curious” as the Second Circuit Blog suggests. Let me preview my idea here and encourage comments from readers: the Second Circuit’s decision in Brown, as well as the recent Ohio decisions which find Ohio’s sentencing scheme largely dodges Blakely problems, both suggest there is an important constitutional distinction to be drawn between (1) finding offense facts that increase applicable sentences (which is now clearly a task for juries), and (2) making sentencing judgments that increase applicable sentences (which is a task that arguably can still be given to judges).
This proposed distinction between finding offense facts and making sentencing judgments dovetails somewhat with the offense/offender distinction developed in my Conceptualizing Blakely article, but it is not the exact same idea. Indeed, the offense/offender distinction cannot fully justify the Booker remedy, since federal judges applying advisory guidelines are still finding offense facts when determining the guidelines advisory ranges. But, what makes post-Booker sentencing different is that, as a result of the remedy devised by Justice Breyer, federal judges are now plainly required to make sentencing judgments using the 3553(a) factors concerning whether to follow the guidelines.
Put another way, the Apprendi–Blakely cases can (and perhaps should) be understood to demand only that juries have a role in finding legally essential offense facts, and these cases do not preclude a judges from making broader sentencing judgments based on facts of all sorts. (This idea also dovetails somewhat, but not perfectly, with the fact/law distinction emphasized by Judge Easterbrook in Carpenter last month.) Notably, support for this reading of the Apprendi–Blakely cases can be drawn from Justice Scalia’s concurring opinion in Ring, where in a final paragraph he asserts that the Ring holding demands “that the jury must find the existence of the fact that an aggravating factor existed,” but still allows states to “leave the ultimate life-or-death decision to the judge.”