Minnesota urging SCOTUS to embrace offense-offender Blakely distinction
In writings since Blakely, I have argued that the Sixth Amendment ought to be interpreted to distinguish between offense conduct and offender characteristics. In the article Conceptualizing Blakely, 17 Fed. Sent’g Rep. 89 (2004) (available here), I explain most fully why I think the text of the Constitution “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.”
I am now pleased to report that, in seeking cert on a state Blakely case, the Minnesota Attorney General is arguing to the Supreme Court that Blakely should be “limited to facts related to the offense itself.” Needless to say, I am convinced by the well-crafted argument in favor of an offense-offender distinction put forward by Minnesota in its cert petition in State v. Allen (which is available for download below). But only time will tell if SCOTUS is interested in this case or the distinction. Here are Minnesota’s reasons for granting the petition in Allen:
This case presents this Court with an opportunity to answer an important question on which lower courts are split: Does Blakely only apply to facts about the crime that affect sentencing (offense-related facts, e.g., whether a gun was used in the crime)? Or does it apply more broadly to include facts about the perpetrator (offender-related facts, e.g., whether the offender is amenable to probation)?
That this is an important question cannot be seriously disputed: the answer will have a direct and significant effect on numerous states, and will have an indirect effect on every legislative body considering sentencing reform. Further, in reading Blakely expansively and rejecting any distinction between offender-related and offense-related facts, the Minnesota Supreme Court ignored both the plain language of the United States Constitution and Blakely‘s animating principle.
Download minn_cert_petition_in_allen.pdf
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