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While it’s certain that Washington state will need to rewrite its sentencing laws in light of the U.S. Supreme Court’s recent Blakely decision, what remains unresolved is the effect the ruling will have on the sentencing laws of other states. But experts predict much work ahead for state lawmakers, who will need to rewrite their sentencing statutes, and, ultimately, a heavier burden on prosecutors to comply with the laws. Justice Antonin Scalia’s June 24 decision found that Washington’s law allowing trial judges-as opposed to juries-to increase defendants’ sentences above a mandated sentencing range was unconstitutional. And though the decision specifically applies to states that impose such ranges, many other states are scrambling to determine whether their sentencing schemes pass muster. And federal prosecutors are in limbo as they wait for word from the Justice Department on how to proceed with their criminal cases. Although the decision in Blakely v. Washington, No. 02-1632, did not address federal sentencing guidelines, prosecutors are bracing for challenges. A Department of Justice spokesman said that the office is reviewing it in order to provide guidance. Apparently, it had better hurry. Last week, a Utah federal judge declared federal guidelines unconstitutional in a sexual exploitation case. At the state level, at least 11 have sentencing laws like Washington’s, which allowed judges to tack on so-called “upward departures” to defendants’ sentences. Those departures were made on top of a sentencing range, such as five to 20 years for robbery, set by state law. In Washington, judges were permitted to increase sentences beyond a range if they found aggravating circumstances by a preponderance of evidence. But Blakely said that aggravating facts, such as the vulnerability of a victim, should be considered by a jury and proven beyond a reasonable doubt. States cited in Justice Sandra Day O’Connor’s dissent with laws mirroring Washington’s were Alaska, Arkansas, Florida, Kansas, Michigan, Minnesota, North Carolina, Ohio, Oregon, Pennsylvania and Tennessee. But the reach of the ruling is expected to extend beyond those states, said Mark Allenbaugh, a former attorney with the U.S. Sentencing Commission. “There’s a hell of a lot of work for legislative bodies to be doing,” he said. Experts agree that states without sentencing guidelines will not be affected, but many have variations of Washington’s scheme, and it’s not clear what they’ll do. California is not among the states with a Washington-like scheme, but is preparing for the consequences of Blakely. Its laws allow judges to elevate a defendant’s sentence to a higher tier based on a finding of aggravated circumstances by a preponderance of evidence, so it appears it will be affected. The California Attorney General’s Office has established a task force to determine how to comply with Blakely, a spokesman said. By contrast, although the dissent stated that Pennsylvania has laws like Washington’s, its Attorney General’s Office believes a distinction exists that takes it out of Blakely‘s purview. Senior Deputy Attorney General Stuart Suss said that Pennsylvania has statutes that require minimum sentences. But its laws are silent as to maximum sentences, a critical distinction, he said, since Blakely involved an upward departure from a statutory sentencing range. He added that Pennsylvania’s guidelines do, however, set the earliest possible parole dates for those defendants convicted. In Blakely, the defendant pleaded guilty to kidnapping his estranged wife. Under a plea agreement and state sentencing standards, he was subject to a range of 49 to 53 months. But the Washington law also allowed the judge to add up to a maximum of 10 years for aggravating factors. The judge sentenced Blakely to 90 months in jail-still below the 10-year statutory maximum-because the crime showed deliberate cruelty. In a 5-4 decision, the justices ruled that aggravating factors determined by a judge could not increase a defendant’s sentence above the guideline range, even if it was below the statutory maximum. Michigan is taking the same position as Pennsylvania in drawing a distinction related to laws that have minimums but are silent, at least technically, as to maximums. A spokesman for the Michigan Attorney General’s Office said that its lawyers have identified “significant distinctions” related to minimum sentencing guidelines. But whether those distinctions matter remains murky. Allenbaugh maintains that to comply with the spirit of Blakely, states with minimum sentencing standards, but without maximums, will need to change their laws to add aggravating factors as elements of those crimes. Suss disagrees: “We think Blakely will have zero impact on Pennsylvania.” One state clearly complies with Blakely already. Last year, Kansas amended its sentencing laws following the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). The Kansas Appellate Defender Office filed an amicus brief in Blakely for the defendant. In Apprendi, the high court held that aggravating facts, other than prior convictions, that serve to increase a penalty beyond the statutory maximum must be alleged in indictments and proven beyond a reasonable doubt. After Apprendi, the Kansas Supreme Court determined in State v. Gould, 23 P.3d 801 (Kan. 2001), that its laws did not comply with the Supreme Court decision. In Gould, a judge doubled the maximum sentence for child abuse committed by a woman with no criminal history, after considering the victims’ ages, the level of brutality and the fiduciary relationship with the victims. At the time, Kansas law allowed judges to exceed the state’s sentencing guidelines for “substantial and compelling reasons.” Gould held that the defendant’s sentence exposed her to greater punishment than authorized by the jury’s verdict. The Kansas Legislature then rewrote its sentencing law, which now states that any fact increasing the penalty beyond the statutory maximum, other than a prior conviction, must go to a jury and be proven beyond a reasonable doubt. “We knew we had to do it,” said Kansas Deputy Attorney General Jared Maag, referring to amending the law. The consequences, Maag said, have been minimal in Kansas. His office now lists aggravating factors on complaints and submits motions for criminal judges to send such facts to the jury. He added that taking aggravating factors out of judges’ hands will create a “huge drain” on jury systems in larger states like California. Others have predicted clogged dockets from defendants unwilling to plead. Instead, they are likely to impose the task of proving aggravating factors on prosecutors.

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