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Although the Supreme Court’s recent decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), has captured the headlines, there have been other important developments in the sentencing procedures. From shifting some of the administrative responsibilities onto prosecutors, to ordering videotaping of sentencing hearings, courts are gradually changing the way sentencing is conducted, particularly in federal courts. Of course, it is understandable that most of the legal community’s attention has been focused on Blakely. As many have noted, it is likely to change dramatically how state and federal sentencings are handled. In Blakely, the Supreme Court threw a monkey wrench into the old sentencing process by holding that a defendant has a Sixth Amendment right to a jury trial on all factual findings that will increase the defendant’s sentence beyond the ordinary range for the crime. Accordingly, courts can no longer rely upon presentence reports alone, or government representations, to decide that there are aggravating factors that increase the defendant’s sentence. The defendant is entitled to a jury verdict on those issues. As a result, until the Supreme Court clarifies the scope and application of Blakely, many courts are now holding separate sentencing hearings to allow the jury to decide beyond a reasonable doubt what factors can be used at sentencing to increase a defendant’s sentence. ‘Blakely’ uproar hides other sentencing changes Yet there have been some other interesting changes to sentencing procedures that have not received as much attention as Blakely. At least two of these changes have been precipitated by Congress’ enactment of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (Protect Act). The act requires courts of appeals to review de novo a district court’s departure from the applicable U.S. Sentencing Guidelines range. Pub. L. No. 108-21, 117 Stat. 650 (2003). The act also requires that the district court file reports following the sentencing of each defendant. Not surprisingly, district court judges have not enthusiastically embraced the new act. Not only did it reduce their discretion to tailor a sentence for the individual defendant, but it also placed an extra administrative duty on them. In response to these changes, courts have begun to change the sentencing procedures in federal court. Consider, for example, the recent decision by a distinguished jurist, U.S. District Judge Jack B. Weinstein. Always on the cutting edge of the law, Weinstein quickly noted that the Protect Act had shifted the power to decide whether a sentencing departure was appropriate to the appellate courts, directing that all downward departures from the sentencing guidelines be reviewed by the appellate courts under a de novo standard. To assist courts of appeals in their “new onerous task of more closely supervising trial judges,” Weinstein has ordered that all sentencing hearings in his court will be video recorded. See In re Sentencing, 219 F.R.D. 262 (E.D.N.Y. 2004). As Weinstein notes, if the appellate courts are actually going to conduct de novo review of sentencings, they will either have to set themselves up as trial courts and allow witnesses to appear in their court or have some other mechanism to evaluate individually the factors that can influence a judge’s decision to depart from the guidelines. The cold record alone does not reproduce for the appellate courts the factors judges use to determine a sentence; a sentencing hearing involves the court’s evaluation of the demeanor and dynamics of people. From observing the defendant, the victim and the victim’s family, the sentencing court is able to assess the familial, physical and emotional factors that can influence a decision to depart from the guidelines. More specifically, “[t]he sentencing hearing normally requires that the defendant be observed for credibility, mental astuteness, physical characteristics, ability to withstand the rigors and dangers of incarceration, and a myriad of other relevant factors. “In many instances, it is necessary to observe the employer’s and familial ties to the defendant. A judge applies mental impressions of many tangible and intangible factors when imposing a sentence. . . . Many of these factors do not appear in the transcript.” Id. at 264. See also United States v. Riley, 2004 U.S. App. Lexis 15900, at 46 (D.C. Cir. 2004). To give the appellate court eyes and ears in the sentencing hearing, Weinstein ordered that all of the sentencings in his courtroom be videorecorded. In doing so, he found that his order does not violate the general prohibition on photographing or broadcasting criminal proceedings in the federal courts. See Fed. R. Crim. P. 53. Quoting from United States v. Berger, 990 F. Supp. 1054, 1057 (C.D. Ill. 1998), Weinstein wrote in his order that the “videotape is more akin to a judicial record than a violation of the ban on cameras in a federal courtroom.” To ensure the parties’ privacy, the videotapes are kept under control of the clerk of the court and not released from the courthouse. Additionally, even though he has ordered these procedures, Weinstein will allow any defendant, witness or government counsel to opt out of video- recording all or part of the sentencing hearing. Thus, in an effort to capture “the real world humanity that the district court judge confronts” in sentencing hearings, In re Sentencing, 219 F.R.D. at 265, the court is changing how it handles sentencings. Turning to technology and society’s general fascination with reality shows, the court has created the starkest reality show of all-sentencing of a criminal defendant. The Protect Act has prompted another significant change in federal court sentencing procedures. Title 28 U.S. Code 994(w)(1) imposes a duty on the district court to submit a sentencing report in connection with each federal criminal case. Aside from their concerns about how the U.S. Sentencing Commission, Congress or the U.S. Department of Justice might use these reports to influence federal judges in their official duties, federal judges were predictably less than thrilled about the administrative burden imposed on the courts by this new reporting requirement. The chief judge of the District of Montana came up with an answer to this new logistical problem. He issued a standing order directing that the U.S. attorney assemble the necessary documents for the report and present them to the clerk of the court for submission to the sentencing commission. The U.S. attorney, who was also not enthusiastic about assuming more paperwork responsibilities for sentencing, challenged the standing order as exceeding the court’s authority and violating the separations-of-power doctrine. Last month, the 9th U.S. Circuit Court of Appeals rejected that challenge. In United States v. Ray, 2004 U.S. App. Lexis 15289 (9th Cir. July 23, 2004), the court held that the standing order did not run afoul of the constitutional doctrine of separation of powers. It noted that while Congress may have imposed on the district court the duty to submit a sentencing report for each criminal case, it did not impose a duty to compile, write, originate or assemble such a report. This extra work could be assigned to the government lawyers, especially since they supported the extra reporting requirements. “When judges are assigned tasks falling outside the precise limits of their adjudicatory functions, they are not-and should not be-stripped of their power to manage the proceedings.” Id. at 38. The lesson of the case? The Justice Department had better be careful what it wishes for, because judges have the power to tweak the sentencing process to shift some of the burden of the new procedures to the prosecutors themselves. Strict view of requirements for preserving objection Finally, frustration over the sentencing procedures has led the courts to take a stricter view of what is required for government counsel to preserve an objection to the court’s sentencing decision. Recently, in United States v. Bostic, 371 F.3d 865, 870-873 (6th Cir. 2004), government counsel tried to appeal the court’s decision to order a downward departure of the defendant’s sentence. During the sentencing proceedings, the prosecutor did not specifically articulate his objection to the departure. Rather, he simply told the court that he wished to be heard after defense counsel. Government counsel never had a later opportunity to do so. On appeal, the appellate court found that government counsel had failed to comply with Federal Rule of Criminal Procedure 51, which requires an attorney specifically to state his objection to preserve it for appeal. If counsel fails to do so, the alleged error will be reviewed for plain error only. As a result of this decision, one can expect that prosecutors will be much more adamant about setting forth their sentencing position early in the proceedings, rather than waiting until they have heard the defense position. Recently, some of the most dramatic changes in criminal law have occurred in the sentencing area. Ever since the landmark case of Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), the courts have been re-evaluating the procedures they use for sentencing. With the passage of the Protect Act, even more procedures are being transformed. The challenge for judges and criminal practitioners alike is to keep up with these changes and appreciate how they change the dynamics of one of the most important parts of a criminal case-sentencing. Laurie L. Levenson is a professor of law and William M. Rains Fellow at Loyola Law School, Los Angeles. She can be reached at [email protected].

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