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July 9, 2004

The 7th Circuit speaks!!

Per Judge Posner, with Judge Easterbrook dissenting, here is the opinion in US v. Booker. WOW, WOW, WOW!

UPDATE: I have just finished Judge Posner's (unsurprisingly brilliant) opinion for the majority in Booker. Here's his helpful concluding paragraph:

To summarize: (1) The application of the guidelines in this case violated the Sixth Amendment as interpreted in Blakely; (2) in cases where there are no enhancements—that is, no factual findings by the judge increasing the sentence—there is no constitutional violation in applying the guidelines unless the guidelines are invalid in their entirety; (3) we do not decide the severability of the guidelines, and so that is an issue for consideration on remand should it be made an issue by the parties; (4) if the guidelines are severable, the judge can use a sentencing jury; if not, he can choose any sentence between 10 years and life and in making the latter determination he is free to draw on the guidelines for recommendations as he sees fit; (5) as a matter of prudence, the judge should in any event select a nonguidelines alternative sentence.

And now I've just finished Judge Easterbrook's (unsurprisingly brilliant and also cheeky) opinion in dissent. Here's his telling final paragraph:
Today’s decision will discombobulate the whole criminal-law docket. I trust that our superiors will have something to say about this. Soon.

July 9, 2004 at 04:56 PM | Permalink

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» New Blakely Decisions from TalkLeft: The Politics of Crime
The 7th Circuit has spoken on Blakely. Per Judge Posner, with Judge Easterbrook dissenting, here is the opinion in US v. Booker. [link via Sentencing Law and Policy] Via How Appealing: The U.S. Court of Appeals for the Eleventh Circuit... [Read More]

Tracked on Jul 9, 2004 5:06:08 PM

» Sentencing Guidelines and the Jury Trial Clause post-Blakely: from The Volokh Conspiracy

A Seventh Circuit panel, in an opinion by Judge Posner, essentially holds large aspects of the federal Sentencing Guidelines scheme unconstitutio... [Read More]

Tracked on Jul 9, 2004 6:02:57 PM

Comments

What surprises me is Judge Posner's sollution -- remand for resentencing, with a sentencing jury, if necessary. The other district judges that have addressed the issue seem least thrilled with the idea of sentencing juries (no statutory authority to do so, costs and time involved, etc...). Plus, Judge Posner recommends alternative sentences if the Guidelines are not severable. So really, he doesn't add clarity to the subject but just adds more confusion.
Frankly, all week we've been haw-haw-ing the DOJ's argument that lower courts can't declare the Guidelines unconstitutional because the Supreme Court did not do so, but Judge Easterbrook seems to make a good case for leaving the guidelines alone.

Something I was thinking about this morning: I don't think the Guidelines can be declared "facially" unconstitutional in light of Blakely because of the outcome in the case (remand) and Justice Scalia's dicta regarding waiver. He states that a defendant could always waive his rights to have sentencing enhancements proved to a jury beyond a reasonable doubt. If Washington's system were facially unconsitutional (and ergo the federal system too), there wouldn't be any opportunity for a defendant to waive enhancements, would there? We would be back to some flavor of indeterminant sentence where the "unwritten" factors would once again be applied solely by a judge and a probation officer. Thus, the Blakely opinion seems to at least imply the continued existence of some formalized sentencing structure.

Posted by: District Clerk Battling Blakely | Jul 9, 2004 5:47:08 PM

Great points, Blakely battler. I think the waiver issue is particularly interesting for a host of reasons. The idea I've been struggling with is whether you can "waive down" the burden of proof -- e.g., could a defendant, instead of waiving his appeal rights in exchange for the dropping of count 2 in an indictment, agree to waive down the jury's burden of proof on count 1 to a preponderance?

Posted by: Doug B. | Jul 9, 2004 9:40:51 PM

Your hypothetical is an interesting one, but difficult to answer because I cannot think of a situation in which a defendant would want a lower standard of proof at a (contested) guilt phase. On the other hand, there are many situations in which a defendant would want a sentencing hearing rather than a full-blown trial (or perhaps even a sentencing trial). How about a more practical hypothetical -- the waiver of a jury trial. The Court in Blakely talks about the effect of the jury upon the criminal process, yet a defendant can (and sometimes--though rarely does) waive a jury trial when she feels it is in her interest. A defendant can waive his right to counsel, his right to remain silent, his right to be indicted, his right to warrantless searches (through consent), and even his right to appeal. The Court has continually protected the rights of the individual in the face of the protectionist interests of our system. So I do not see a discord between the BRD standard for guilt but a waiver of the same standard for "sentencing factors."

Posted by: District Clerk Battling Blakely | Jul 12, 2004 10:27:46 AM

layperson seeking info on what being done to revise habitual criminal act.the last i heard it was being study to determine its constitutionality.please if u have any info,or know a web site,e-mail me thanks s.banks alton,il

Posted by: sharon banks | Sep 15, 2004 8:30:05 PM

layperson seeking info on what being done to revise habitual criminal act.the last i heard it was being study to determine its constitutionality.please if u have any info,or know a web site,e-mail me thanks s.banks alton,il

Posted by: sharon banks | Sep 15, 2004 8:32:22 PM

Is anyone aware of any statistics, USSC or otherwise, regarding the % of times that judges sentence defendants facing 0 to 6 under the Guidelines to a period of incarceration. We need support in order to make the following statement in a memo in aid of sentencing: "For the reasons discussed more fully below, the defendant should be treated like the vast majority of defendants facing a Guidelines sentence of zero to six months, and be sentenced to probation." Thanks

Posted by: Kirby Behre | Feb 11, 2005 10:29:44 AM

I think the waiver issue is particularly interesting for a host of reasons.

Posted by: Robe de Cocktail Pas Cher | Dec 12, 2012 3:02:18 AM

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