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Measure 11, Escape Hatches and Blakely: Biggest Sentencing News of the Month!

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by: Ryan • October 5, 2012 • no comments

Very cursory summary here, because I'm tied up with other things, but this news is (potentially) huge.

First, a quick background.

Let's assume the sentencing range for a crime is 5-10 years in prison. But if the judge makes certain findings, the range is 0-10 years. Thus, the findings can drop the floor -- rather than raise the ceiling -- by 5 years.

Are those findings "blakely" findings? In other words, should the existence or non-existence of those facts -- which can impact the sentence by 5 years -- be made by a jury?

Right now, the answer is no. The federal case that says so is Harris v US.

Today, SCOTUS has granted cert on a case where the question raised is, according to SCOTUSblog:

11-9335 - Alleyne v. U.S. - will SCt overrule Harris v. U.S., under the decision in 2002 in Apprendi v. New Jersey, requiring juries - not judges - to find facts to support enhancing a criminal sentence

Arguably, any change in the law would not only apply to M11 cases that have escape hatches (Rob II, Assault II), but it would apply as well to BM57 cases.

Preserve now!

I'll follow up with posts from SCOTUSblog and Sentencing Law and Policy Blog when they become available.