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July 2, 2004

Other institutional voices

I was extremely honored to receive an e-mail this afternoon from District Judge Joe Goodwin (author of the recent Shamblin decision). He wanted to supplement my call for other institutions to start responding to Blakely. Here's Judge Goodwin's astute commentary:

I wholeheartedly agree that we should be hearing from others on the issues raised by Blakely, [but] it is impractical for judges to stop the system on the tracks in every instance. Judges have deliberating juries, sentencings subject to revision for clear error within 7 days, and scheduled sentencings which will stack up fast. I...was faced with a Rule 35(a) motion and a 24 hour deadline. To the point --- we need the help of the academic community. I urge you and your colleagues to make your views known to the judiciary, the Congress and the executive.
Of course, I agree academics have a role to play (and I know many are trying to do their part via blogs, the Federal Sentencing Reporter and other projects such as the on-going work of the ABA and ALI).

In addition to listening to academics, I hope Congress and others considering the new world of federal sentencing will consider the many important insights and ideas to be drawn from state sentencing developments. Proving that Justice Brandeis was indeed an "omniscient seer", the "laboratory" of the states has been recently producing many innovations and considerable successes in the arena of sentencing reform. This terrific report from the Vera Institute of Justice highlights that recently "more than 25 states took steps to lessen sentences and otherwise modify sentencing and corrections policy during the 2003 legislative sessions [making] significant changes ranging from the repeal or reduction of mandatory minimum sentences for drug-related offenses to the expansion of treatment-centered alternatives to incarceration."

Importantly, the well-established trend to cut back on harsh mandatory sentences is being driven largely from Republican quarters. Here is a an article from Governing Magazine which helps highlight that, from Alabama to Maryland to Michigan to Texas, Republicans have been leading proponents of the modern shift from penal retribution toward rehabilitation.

July 2, 2004 at 03:28 PM | Permalink

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Comments

As former assistant federal public defender and now a legal writing professor at ASU College of Law, the Blakely decision raises a host of questions for me. The one most interesting to me right now is whether the trio of Apprendi, Ring and Blakely signal the Court's course on returning the jury to its pre-eminent role in the criminal justice system. The rhetoric in Scalia's majority opinion in Blakely and the other opinions in Apprendi and Ring all raise the issue as the jury being the true locus of power in the criminal courtroom. For the last generation or so, we have seen power shift back and forth between the judge and the prosecutor. What broader consequences can these three cases have for the future of the jury beyond sentencing? The return of an express power of jury nullification is one that comes to mind. Just a thought.

Posted by: Zig Popko | Jul 2, 2004 4:01:19 PM

Great points, Zig. Also, to the extent that along with the jury comes the Beyond a Reasonable Doubt (BRD) standard, I also wonder if we might see an invigoration of that standard throughout the criminal justice system --- e.g., for parole/probation decision, for the application of so-called "civil" sanction. Scalia's opinion could be read SOOOOO broadly, and there are many judges in many setting who may be more than happy to give it a broad reading.

Posted by: Doug B. | Jul 2, 2004 5:55:51 PM

I'M A STUDENT I HAVE A QUESTION CONCERNING THE BLAKELY LAW WELL HERE GOES,IF A

PERSON WAS CONVICTED OF A DRUG CRIME AND IS UP AGAINST A POSSIBLE RE-CONVICTION OF A DRUG CRIME CAN HE BE SENTENCED HARSHLY DUE TO HIS PRIOR CONVICTIONS? OR DOES THE BLAKELY LAW PROTECTS AND ONLY GIVES RIGHTS TO CONVICT SOLEY ON THE PRESENT CRIME NOT HOLDING PRIOR CONVICTIONS AGAINST PERSON CHARGED OF SUCH CRIME.

Posted by: nicole | Sep 19, 2004 4:07:50 PM

My husband is being sentenced in Jan he pled guilty to transportation of a firearm, he is a previous offender with a record in CA, but is being sententenced in Denver,Co he asked me to find out info regarding this Blackley Law can this help him?

Posted by: tammy amezola | Nov 29, 2004 4:16:53 PM

my son was charged with a felon having a gun .this was dismissed when they found out that the time time was up and his rights to have a gun was given back to him after all of this he was charged with having a gun under a restringing order . could this law help him. he sat in jail for 90 days before they charged him with the second charge.

Posted by: leona williams | Jan 3, 2005 4:31:14 PM

Scalia's opinion could be read SOOOOO broadly, and there are many judges in many setting who may be more than happy to give it a broad reading.

Posted by: Robe de Cocktail Pas Cher | Dec 12, 2012 1:50:37 AM

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In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB