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October 4, 2004

Read (and read some more) about the oral argument

Helpfully, fellow bloggers and the traditional media continue to do a great job covering the essentials of today's SCOTUS arguments. The SCOTUS Blog has great posts by Tom Goldstein here and here, and the Blakely Blog fills out its play-by-play here and here.

And, the media chimes in on the argument through pieces from The New York Times, Legal Times, The Washington Post, The Baltimore Sun, The Dallas Morning News, and Knight Ridder. Bonus points to any reader who works through all these accounts and comments upon whether they paint similar or distinct pictures of what happened today. I can tell you that Dahlia Lithwick, as is her special gift, provides the most entertaining version of the argument at Slate here.

I have no plans to try to replicate any of these efforts. Rather, in a series of posts to follow tonight and tomorrow, I plan to contribute a variety of reflections about a variety of aspects of the arguments. I'll start, in a few minutes, with reflections on the Petitioner's arguments on applying Blakely to the federal guidelines.

October 4, 2004 at 11:08 PM | Permalink

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Comments

I was an asst fed PD in San Diego, and recently left the office (just after all this Blakely fun started).

One thing I'm surprised to read in these play-by-plays is that the Supremes (or some members) seem to be leaning towards creating sentencing juries. This seems to open up a whole host of problems in light of Supremes' decision in United States v. Jackson, 390 U.S. 570 (1968), in which the Court held that the courts cannot create sentencing juries if Congress specified a particular procedure.

Jackson was a death case in which the defendant pled guilty to avoid the death penalty. (Death could only be imposed upon a jury verdict; if there was a bench trial or guilty plea, death was not a possible sentence.) The Supremes held the provision unconstitutional, and the Government argued that the death scheme could still be saved if a sentencing jury was created. The Supremes rejected that argument: "To accept the Government's suggestion that the jury's sentencing role be treated as merely advisory would return to the judge the ultimate duty that Congress deliberately placed in other hands." Id. at 576. In other words, if Congress specified a particular procedure (as in, say, a sentencing guildeline scheme), the courts could not rewrite the statute to change that procedure...

Jackson is a pretty compelling argument against sentencing juries... Has it even been mentioned in the Booker/Fanfan litigation?

--Angie, Asst. Pub. Defender, Saipan

Posted by: Angie | Oct 4, 2004 11:44:02 PM

Angie: Yes, indeedy. The govt argues Jackson heavily in its brief as a reason why the remedy, if the GL are basically struck down, should be to sever 18 USC sec 3553(b) (although oddly they say elsewhere the scheme is not severable) and rely on 3553(a) to treat the guidelines as advisory. The respondents (defendants) argue specific reasons why Jackson is distinguishable. It's all in the briefs, which you can download and read from this site. (I am a co-author of the NACDL amicus brief, which argues for judicial power to convene juries, distinguishing Jackson.)

Posted by: Peter G | Oct 5, 2004 12:35:48 AM

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