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July 31, 2004

Blakely media coverage

Especially if (when?) the Supreme Court grants cert. on a federal Blakely case this Monday, we can expect even more media coverage of the law, policies and practices of modern sentencing systems. I am hopeful that this media coverage will facilitate serious reexamination of existing federal and state sentencing systems by both the public and politicians (as has already been recommended by the American Bar Association's Justice Kennedy Commission).

But the complicated story of sentencing reform, and Blakely's complicated and still developing chapter in that story, may not always be accurately discussed in the media. Proof comes from this editorial in the Houston Chronicle: though the headline and main themes are astute, I count at least five erroneous statements or implications in the discussion of the law.

Fortunately, sophisticated legal reporters can tell compelling Blakely stories that accurately capture all the legal nuances. The Blakely coverage has been well done in major papers such as the New York Times, the Washington Post, the Boston Globe and the Wall Street Journal (I am biased here), and some smaller papers such as the Knoxville News Sentinel deserve credit for being "ahead of the curve" on the Blakely story.

Continuing its fine Blakely work, over at law.com you can now find this extended article discussing the different post-Blakely federal cases the Supreme Court has been asked to review. The article insightfully notes that the litigants and others are "closely watching which cases the justices decide to review, and how quickly, as a sign of the legendary clout of the solicitor general's office in helping the Court set its agenda."

In addition, I know that NPR is airing on today's Weekend Edition a thoughtful piece by Wendy Kaufman entitled "Ruling on Sentencing Guidelines Creating 'Legal Anarchy.'"
UPDATE: The NPR story, which one of my favorite readers calls a "great explanation of the Blakely issue for bright laypeople," is now available on-line at this link. Also, I discovered that Jonathan Scogin over at Criminal Appeal has quite effectively summarized the state of criminal law here.

July 31, 2004 at 10:13 AM | Permalink

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Comments

Defense attorney.
What concerns me about the discussions of
severability is that little concern is paid
to the Due Process Clause. For example, a
Defendant, at the time of commission of the offense, had a reasonable expectation that
the guidelines – held binding since 1989 –
would be applied to him consistently with
the United States Constitution (recognizing,
of course, that not all such constitutional
issues had been resolved by the Supreme
Court). What the defendant could not
reasonably anticipate – because no similar
action has ever been taken by a court in our
nation's history – is that a sentencing court
could take away the right to be sentenced
constitutionally within the existing
statutory scheme (including 18 U.S.C.
§ 3553(b)’s mandate of binding guidelines)
merely in order to avoid affording the
defendant his constitutional rights under
the Fifth and Sixth Amendments or out of
concern for conflicting congressional
intentions.

Posted by: Richard Carroll | Jul 31, 2004 11:06:05 AM

What concerns me about the discussions of severability is that little concern is paid to the Due Process Clause.

Posted by: Robe de Soirée 2013 | Dec 14, 2012 1:06:50 AM

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