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August 4, 2004

Insights, commentary and help from many sources

A few days after Blakely was handed down, Judge Joe Goodwin implored academics and others to contribute to post-Blakely conversations about the future of sentencing reform (details here). I am pleased to report that many institutions have started to heed this call in many ways.

For example, the Vera Institute of Justice is sponsoring a discussion next week with Professor Frank Bowman (author of the famed Bomwan proposal) entitled "Does Blakely Mean the End of the Federal Guidelines?" Details about the program can be downloaded here:
Download vera_bowman_event.pdf

Similarly, as Jason Hernandez noted here, the Cato Institute will be hosting on Thursday, August 26, 2004 a program entitled "Blakely's Wake: Should the Federal Sentencing Guidelines Be Saved or Scrapped?". This link here provides more details of the headliners slated to be involved in this event.

And, as reported in Ninth Circuit Chief Judge Mary M. Schroeder's State of the Circuit Speech a few weeks ago (available here), the biggest federal Circuit is also on the job:

The major new project we hope to get under way this year is sentencing. We were unable to get started last year because of budgetary woes, but we can’t wait any longer. This delay, it turns out, has nevertheless been fortuitous. The Supreme Court’s decision in Blakely overturning a well-accepted state court model for sentencing has cast doubt about the constitutionality of the federal system, and, in the e-mailed words of the distinguished judge who has agreed to chair this project for the Ninth Circuit, “knocked our ideas about sentencing into a cocked hat.” That judge, I am delighted to announce today, is District Judge Charles Breyer of the Northern District of California. This very important project will go forward in collaboration with the American Law Institute, which has its own sentencing project under way aimed at state courts. I look forward to working with Chuck in putting together a group of lawyers, judges, academics and consultants to move forward under his leadership. Sentencing reform is now essential, and complete restructuring may well be the theme.

(Of course, according to this report at CrimLaw, the Ninth Circuit's ultimate recommendations may not be immediately adopted across the country.)

It also merits mention in this setting that many groups have already started trying to figure out the post-Blakely world. For example, the NACDL had a Blakely panel at its meeting in San Francisco last week entitled, "Addressing the Implications of Blakely on State and Federal Sentencing Guidelines." The star-studded list of panelists were Jeffrey Fisher, Judge Nancy Gertner, Carmen Hernandez, Peter Goldberger, Steve Kalar, and Ron Weich, and details about obtaining an audio recording of the event can be found at the NACDL's Blakely page here.

Also, the Constitution Project sponsored last week the first meeting of its new sentencing initiative, which brought together federal and state judges, congressional staff, representatives of the USSC, DOJ, bar associations, NACDL, NAAG, ABA, and five state sentencing commissions (Pennsylvania, Kansas, Minnesota, Maryland, and DC), as well as a variety of other criminal justice and civil rights policy and advocacy organizations. UPDATE: Here's a new link to the project.

The meeting included information-sharing on federal and state litigation and legislative efforts, and included a review of what Congress and state legislatures are doing in response to Blakely, the possible outcomes of further Supreme Court review, and the respective roles of legislatures, sentencing commissions, judges and juries in determining sentences post-Blakely. The Constitution Project reports that it will likely convene the group again in September and that it is also assembling a smaller emergency working group to begin crafting recommendations for legislatures and judges addressing Blakely. The Initiative is in great hands, being guided by Professors David Yellen and Frank Bowman and Ronald Weich.

August 4, 2004 at 08:25 AM | Permalink


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Check it out -- even if your Circuit Court has spoken on Blakely, you don't necessarily have to follow their lead! This from the District of Nebraska:

"Under principles of stare decisis, decisions of the Eighth Circuit Court of Appeals have precedential value and must be followed by the district courts within the Eighth Circuit. ... Nevertheless, the court finds it is not bound to follow Mooney at this time, since the appeals court decision is not yet final. Stare decisis is similar to the doctrines of res judicata and collateral estoppel, which require a final judgment, although stare decisis does not draw its force from the policy that protects final judgments. Instead, stare decisis "stems from the principles of stability and equal treatment underlying the orderly development of legal doctrine." 18 James Wm. Moore, et al., Moore's Federal Practice § 131.13[3] (3d ed.2004). ... In circumstances such as these, the court finds that principles of stare decisis require restraint in the use, as precedent, of a decision that is not yet final." United States v. Swan, 2004 WL 1725703 at *2 (D. Neb. Aug. 2 2004).

Rejecting Mooney's all or nothing approach, the district court found the Guidelines severable and applied held that "the proper reading of Blakely would allow a court to follow the guidelines as long as factors increasing the 'maximum,' as defined in Blakely, are charged in the indictment and either admitted or submitted to a jury (or the court if a jury is waived) under the standard of proof beyond a reasonable doubt." Id.

Posted by: Sarah Merriam | Aug 4, 2004 10:28:51 AM

The star-studded list of panelists were Jeffrey Fisher

Posted by: Robe de Soirée 2013 | Dec 14, 2012 1:40:34 AM

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