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August 31, 2004

An early brief to SCOTUS, sort of

I have tomorrow circled on my calender because September 1 is the date that the Acting Solicitor General (and any amici in support of petitioners) must file briefs in Booker and Fanfan. I expect the brief from the SG's office to be brilliant and pathbreaking, though whether it will be convincing to the Justices is the big question. Whatever the case, I hope to be able to share the SG's brief (and also the USSC's expected amicus brief) tomorrow afternoon.

In the meantime, Professor Frank Bowman has been kind enough to share with me his own brilliant and pathbreaking work in the form of an article which he has described as "his amicus brief" to the Supreme Court. The article, which can be downloaded below, is forthcoming in the American Criminal Law Review and is entitled "Train Wreck? Or Can the Federal Sentencing System Be Saved? A Plea for Rapid Reversal of Blakely v. Washington."

Of course, readers of the blog should be familiar with Frank's work through his insightful and noteworthy memoranda to the US Sentencing Commission soon after Blakely was handed down (available here and here). A summary of this latest effort can be accessed through the SSRN service here, though the entire article demands to be read to appreciate all of the nuances and metaphors in Frank's work. Let me here share the provocative article's evocative opening paragraph:

On June 24, 2004, five black-clad figures seized control of the Criminal Justice Express, crashed through warning barriers, flattened the Washington State Sentencing Guidelines, opened the throttle, and sent the train hurtling from the main line down the old rail spur where the Federal Sentencing Guidelines and the sentencing systems of numerous states lay tied helplessly to the tracks. Whereupon, the 2003 Term of Court being concluded, the justices twirled their collective mustachios, sent their robes off to the cleaners, and went on vacation. Two months on, as this Essay goes to press, the rest of us stand staring slack-jawed, some delighted and some aghast, at the disarray and paralysis in the locomotive’s wake and the impending carnage at the end of the line.

Download bowman_trainwreckssrn.pdf

August 31, 2004 at 06:06 PM | Permalink


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This isn't substantive, but . . .

Professor Bowman's "slack-jawed" is good; Professor Behrman's "gobsmacked" is better.

Posted by: Michael Ausbrook | Aug 31, 2004 7:12:06 PM

Professor Bowman does a great job of discussing the practical ramifications that will no doubt flow in the event the Supreme Court applies Blakely to the USSG. Being the Court Rules Attorney in a District Court within the Ninth Circuit, which in Ameline Blakely-ized the USSG, I am only too cognizant of the effect and myriad of problems that are lurking in the wings as a result. I have spent the better part of the past month drafting procedural rules for bringing Blakely/Ameline related issues to the attention of the court for resolution in cases that have not yet gone to trial. The final draft of those rules has been submitted to the judges for consideration.
On the other hand, the glaring omission in Professor Bowman’s thesis is any discussion of the fundamental underpinnings of Blakely: the Sixth Amendment. The crux of the question and the analysis omitted: Is Blakely a correct interpretation and application of the Sixth Amendment? If not, then Blakely should be overruled. If it is, as Professor Bowman appears to acknowledge, there is no good reason for holding that Blakely should not be applied to the USSG. The arguments advanced that it should not be applied simply because of its adverse impact on the criminal justice system are irrelevant. I admit that it has been 30 years since I last taught Criminal Law and nearly that long since I last taught Constitutional Law, but is not the purpose of the Bill of Rights to protect the individual from governmental action notwithstanding its necessarily attendant adverse impact on the convenience of the government, the “system,” or even society as a whole?
A subsidiary question is whether there is any real difference between an “element of the crime” and a “sentencing factor.” If there is a difference, where is the line of demarcation? An element of the crime, as conceded by all, must be established by a jury (or judge in the case of a jury waiver) beyond a reasonable doubt, applying the rules of evidence. A sentencing factor under the USSG on the other hand may be established by a preponderance of evidence that would not necessarily be admissible under the rules evidence as long as the judge deems it reasonably reliable. [One might note that this, in itself, tends to undercut the disparity of sentencing prong underpinning sentence reform simply because it allows one judge to accept particular evidence, e.g., hearsay on hearsay, while another may reject it, resulting in a difference of years in the sentence.] Is an increased sentence based upon “real conduct” instead of “charged conduct” not similar to the “lesser offense” argument advanced by Professor Bowman, therefore raising the same double jeopardy concerns?
I simply suggest that the legal community, especially the academic arm, focus more on the weaknesses, of which many have been identified, of the Constitutional underpinnings of Blakely and less on the Chicken Little “the sky is falling” approach. If Blakely is on solid Constitutional grounds, the fact that its application to the USSG may bring down the house does not make the USSG any less unconstitutional.

Posted by: Thomas J. Yerbich | Sep 1, 2004 3:53:45 PM

Mr. Yerbich,

Posted by: Jeannie | Sep 1, 2004 8:34:02 PM

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