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October 1, 2004

Pre-argument reading guide

If you've read all the briefs in Booker and Fanfan (or at least the Blakely Blog's synopses), and you are wondering what else to read to prepare for Monday's arguments, I can make a few classic suggestions.

Of course, you could read the entire line of cases culminating in Blakely, which principally includes Almendarez-Torres v. US, 523 U.S. 224 (1998), Jones v. US, 526 U.S. 227 (1999), Apprendi v. New Jersey, 530 U.S. 466 (2000), Harris v. US, 536 U.S. 545 (2002), Ring v. Arizona, 536 U.S. 584 (2002). Helpfully, all these cases (as well as some related others) can be found at this helpful page assembled by the First District Appellate Project.

In addition, I would also recommend a read of the cases which have historically sanctioned the application of lax procedures at sentencing, most particularly Williams v. New York, 337 U.S. 241 (1949), McMillan v. Pennsylvania, 477 U.S. 79 (1986), and US v. Watts, 519 U.S. 148 (1997). Then, for an ineresting contrast, consider reading In re Winship, 397 U.S. 358 (1970).

Finally, though this might require a trip to the library, consider reading the text that helped launch modern sentencing reforms, Judge Marvin Frankel's Criminal Sentences: Law Without Order (1972). Judge Frankel highlighted that sentencing disparities in discretionary sentencing systems were a symptom of the greater disease of "lawlessness in sentencing." He said disparity was the inevitable result of a system that lacked guiding standards and thereby forced each judge to rely upon his or her own individual sense of justice when selecting an offender's sentence. Recognizing that "lawlessness" was the fundamental problem in discretionary sentencing systems, Judge Frankel called for "remedies by lawmaking" — i.e., the development of a "code of penal law" which would "prescribe guidelines for the application and assessment" of "the numerous factors affecting the length or severity of sentences."

Critically, Judge Frankel's classic tome included an entire chapter entitled "The Dubious Process." In this chapter, Judge Frankel noted the absence of significant procedural safeguards in discretionary sentencing decision-making, and he suggested that the lack of procedural regularity contributed to "a wild array of sentencing judgments without any semblance of consistency." Frankel expressed particular concern about how information considered at sentencing was assembled and examined. Judge Frankel lamented that courts at sentencing were relying "for grave decisions . . . upon untested hearsay and rumor," and he expressed concerns that "presentence investigation represents a sudden and total departure from [a court’s usual] fact-gathering procedures," because it provides information that is not "exposed to adversary scrutiny, to rechecking at sources, to cross-examination."

Of course, for your reading pleasure, I now have nearly 500 posts here on the blog (most of which are on Blakely topics). And some recent posts of note are assembled here. And I encourage readers to use the comments to suggest other must-reads.

October 1, 2004 at 10:51 PM | Permalink


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Since Judge Frankel's wonderful little book is far from a dead letter, Doug, and is anything but deadly dull, I think it would be more fair to refer to it as a "classic tome" than as a "classic tomb."

Posted by: Peter G | Oct 2, 2004 3:55:26 PM

Of course, Peter, you have got me there. The problem is now fixed, and I have learned my lesson about post late on a friday night. Thanks.

Posted by: Doug B. | Oct 2, 2004 3:57:56 PM

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