All hail the Blakely Frontier

The state nickname for Alaska is “The Last Frontier,” but I am going to start calling it the Blakely Frontier after the Alaska Court of Appeals issued another terrific and terrifically interesting Blakely opinion in Carlson v. State, No. 2029 (Alaska App. Jan. 27, 2006) (available here).  Last month, as detailed here, the Alaska Court of Appeals issued a strong opinion on Blakely and consecutive sentencing in Vandergriff v. State, No. 2022 (Alaska App. Dec. 16, 2005), and Carlson is more of the same.

The Carlson decision is authored by Judge Mannheimer, who wrote a fantastic concurrence in Vandergriff in which he provided a cogent and compelling account of the Apprendi–Blakely–Booker line of decisions.  The Carlson opinion covers similar ground in its thoughtful explanation of its holding that a judge’s imposition of a “sentence that exceeds the benchmark sentencing range for second-degree murder” established by caselaw does not transgress the Sixth Amendment.  Here is a small sample of a must-read state Blakely decision:

To preserve the right to jury trial guaranteed by the Sixth Amendment, the Supreme Court has ruled that governments can not define criminal offenses in a manner that allows the prosecutor to present a stripped-down case to the jury and then, following the defendant’s conviction, allows the sentencing judge to decide other factual issues which (if proved) will lift the sentencing ceiling — effectively convicting the defendant of an aggravated degree of the underlying offense….

The constitutional problem in Apprendi, Blakely, and Booker was the attempt by various governments to segregate certain aspects of a crime — facts that would traditionally be viewed as elements of the crime (facts relating to the defendant’s conduct, mental state, or criminal history, or other circumstances surrounding the crime) — and assign the decision of these facts to the sentencing judge by declaring these facts to be “sentencing factors”….

Rather than being a finding of historical fact, the finding required by [our caselaw here] (some sound reason for concluding that the defendant should receive a sentence longer than 30 years) is partly a weighing of imponderables and partly a prediction of the defendant’s future behavior, based on the judge’s assessment of the underlying causes of the defendant’s criminal behavior, the defendant’s likelihood of recidivism, and the defendant’s amenability to rehabilitative efforts. In other words, this finding does not look like any of the findings that are traditionally entrusted to the jury under our system of justice (save in those few states which give sentencing authority to juries).