Opposition to cert petition urging offense-offender Blakely distinction
As detailed in this post, in seeking cert on a state Blakely case, the Minnesota Attorney General is arguing to the Supreme Court in Minnesota v. Allen that Blakely should be “limited to facts related to the offense itself.” I have an affinity for this argument because, as I have explained in recent articles, I think the Sixth Amendment should be interpreted to distinguish between offense conduct and offender characteristics. But, because this offense-offender distinction has never been embraced by SCOTUS, I recognize that this approach to Blakely would mark something of a shift in the Court’s approach to these issues (although it would conceptually justify the otherwise questionable “prior conviction” exception).
The defendant’s brief in opposition to cert in Allen (which can be downloaded below) makes a strong argument that an offense-offender approach to the Sixth Amendment would mark a significant change in the Court’s jurisprudence. Here is the opening of the effective brief in opposition in Allen:
The petition should be denied for at least three reasons: first, there is no split of lower-court authority for the Court to resolve on the issue on which petitioner seeks certiorari; second, the rule proposed by petitioner would run afoul of years of Supreme Court precedent; and third, this case is not the proper vehicle for addressing petitioner’s concerns.
Download minnesota_v. allen BIO.pdf
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