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Couple of cert petitions filed

We filed a couple of cert petitions last week.

The first was Denny v. Kansas, seeking review of (1) the prior conviction exception left intact after Apprendi and (2) whether juvenile adjudications fall into the prior conviction exception. We have filed a couple dozen cert petitions on these issues since Apprendi in 2000, and although the SCOTUS has ordered responses in a couple of them, none have been granted. The second issue in particular is a good cert issue with a huge split among state jurisdictions and federal circuits and between state and federal jurisdictions. But so far the SCOTUS hasn't seen fit to resolve the important question.

The second petition, filed by Carl and I together, is Green v. Kansas, seeks guidance on an important post-Apprendi question: can states use non-statutory aggravating factors to support upward durational depatures? You may remember that the KSC accurately presaged Blakely on the application of Apprendi to upward durational depature findings. After Gould, the Kansas Legislature enacted an upward durational departure scheme and we are now seeing some upward durational depature trials. But many of these trials are based on allegations of non-statutory aggravating factors. The question presented in this case is whether the state can base an upward durational departure on such non-statutory factors.

Justice Hurwitz of the Arizona Supreme Court recognized the potential flaw in using such "catch-all" provisions as aggravators in his concurring opinion in State v. Price:

But even when a jury trial is afforded, a serious Fourteenth Amendment due process problem is presented if the "catch-all" is the only factor that makes a defendant eligible for a sentence beyond the presumptive term. In that situation, one of the elements of the aggravated crime under former A.R.S. § 13-702(C)(18) is effectively "[a]ny other factor the court deems appropriate to the ends of justice." Under the current "catch-all," A.R.S. § 13-702 (C)(24), the "functional element" of the aggravated crime in such a case is "[a]ny other factor that the state alleges is relevant to the defendant?s character, background or to the nature or the circumstances of the offense."

A defendant has no notice, in advance of the conduct that exposes him to jeopardy for the "aggravated crime," of precisely what is proscribed under the critical "catch-all" element. It is as if the criminal code had one punishment for theft, and another for aggravated theft, the former consisting of theft simpliciter and the latter consisting of the elements of the theft plus "anything else the court or the state may someday later find relevant."

A statute that fails to provide fair notice of precisely what acts are forbidden "violates the first essential of due process of law." Connally v. General Constr. Co., 269 U.S. 385, 391 (1926). When criminal penalties are at issue, "[a]ll are entitled to be informed as to what the State commands or forbids." Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939). Moreover, by failing to provide an explicit standard for a sentencing judge, the "catch-all" element would also seem to offend due process by allowing for arbitrary and discriminatory enforcement. See Smith v. Goguen,
415 U.S. 566, 575 (1974) ("Statutory language of such a standardless sweep allows policemen, prosecutors, and juries to pursue their personal predilections."); Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972) ("A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis . . . .").

It is difficult for me to see how an element of a crime as loosely defined as the "catch-all" aggravator can satisfy these basic elements of due process when used as the only "functional element of a greater offense."

This issue is likely to be recurring in jurisdictions that have reformed their determinate sentencing schemes to conform with Apprendi and Blakely. Of course the odds of cert being granted in any given case are long, but you should be sure to make a Due Process and Sixth Amendment objection to any use of non-statutory aggravating factors in upward durational depature proceedings.

Full post as published by Kansas Defenders on September 02, 2008 (boomark / email).