October 1, 2004
I am going to leave discussion of the Presidential debate to other bloggers like TalkLeft here and Instapundit here. But I do want to note that Professor Stephanos Bibas and I have finished a fun week of debating Blakely here as part of the Legal Affairs Debate Club. Stephanos and I agreed more than we disagreed, but I think we were both able to develop some valuable ideas through the debate format. Though I would encourage a review of the whole debate, I want to share here parts of my parting shot:
Legal Affairs asked the question "Can the Court clean up its Blakely mess", but I do not think the Supreme Court should be blamed for "its" mess. As our last few posts highlight, the often misguided efforts of Congress and the U.S. Sentencing Commission are more responsible for the messy state of federal sentencing law that we now have....
I fear we are blaming the messenger when we assail the Supreme Court for making a mess with Blakely. Congress and the Sentencing Commission have created harsh, rigid sentencing laws that many judges rightly complain take the humanity out of the sentencing process. I am not confident that the extension of Blakely to the federal system will bring humanity back to federal sentencing, but I am confident that we should not be troubled by the demolition of a system that is flawed in so many ways. In my view, the Blakely earthquake is to be praised, not cursed, because it may (and should) bring down a federal system which was poorly constructed from the outset. Like you, I fear that Congress's re-building effort might lead to a more grotesque and unjust federal sentencing structure, but I am the eternal optimist when it comes to believing that our leaders will always want to and always try to do better.
October 1, 2004 at 12:39 PM | Permalink
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