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December 8, 2004

The costs of delay

I am sure federal prisoners throughout the country are disappointed that we did not get a sentencing decision from the Supreme Court today, especially since, as noted here and here, the federal prisons have been systematically been gearing up for the opinion.  But I also have to think that federal prosecutors and defense attorneys, not to mention federal court judges, are also very ready to know more about the future of the federal sentencing system. 

With all the extra time I now have, I went back and re-read this post from July in which I excerpted quotes from the Acting Solicitor General's Supreme Court filings urging the Court to grant cert. in Booker and Fanfan and to schedule oral arguments in September.  All the quotes are amazing to re-read, and they reinforce my belief that the Court should, and likely still will, give us a decision before the end of this year.

December 8, 2004 at 11:32 AM | Permalink


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Your eternal optimism never ceases to amaze me, my friend!

Posted by: JEHawley | Dec 8, 2004 11:58:04 AM

I am very disappointed that this decision has been delayed yet again. Is Rehnquist health the problem or is it a much broader issue of retroactivity? Inquiring minds NEED to know!

Posted by: Joshua Harrison | Dec 8, 2004 3:40:09 PM

It's worth pointing out that the "delay" is only in our own minds--the Court isn't committed to any particular schedule. Thus far, the Court has issued five signed opinions for the current Term, and they were all easy cases, in which the decisions were unanimous, or close to unanimous. Blakely is not an easy case, and it will almost certainly be a 5-4 decision. Those types of cases simply take longer.

Last Term, as of December 10, 2003, the Supreme Court had issued five signed opinions. It was the same number as of December 10, 2002. I would conclude that the Court is maintaining its usual pace, and the "delay" is not attributable to the Chief Justice's illness.

Posted by: Marc Shepherd | Dec 8, 2004 4:51:24 PM

We must also remember that Booker/Fanfan's issuance lights a 14-day fuse on hundreds, if not thousands, of responsive filings across the country, and across the Judiciary's tiers. The Supreme Court seems free to time its opinions in the interest of efficient administration of justice (favoring an opinion in the New Year) or, if immediate legislative redress is requested or expected, in comity with the new Congress' seating. In either event, even a January opinion (three months from argument to rendition) would be lightning fast for such earth-shaking decision-making.

Posted by: Jay Hurst | Dec 9, 2004 9:57:37 AM

Yes this decision will light a fuse but isn't that in keeping with the spirit of the patriots. Yet for those of us with pre-Apprendi cases it may still be a December to remember. I have an for an incarcerated loved one. He was "buried alive" in the 7th Circuit. He was mentally abused the victim of extreme prosecutorial "indiscretions" as termed by Berman. The current system and policy allows prosecutors to become ruthless!
My loved ones case involves so many elements currently being scruitined like -Enhancements- (obstruction)- Extreme Ineffective Assistance as the original defense attorney was under indictment during the course of trial! There are many more "strange" happenings such as jury tampering that a subsequent defense team from many miles north was called in an attempt to seek justice. However, as I forsaid he was "Buried Alive".
We continue to hope against hope for relief/retroactivity. We want the court to take its time on this critical issue. You see Charles Dickens is nice but I am looking for the court to concur to something Langston Hughes wrote long ago "I, too, sing America.
I am the darker brother.
They send me to eat in the kitchen
when the company comes,
But I laugh
And eat well
And grow strong.

Posted by: Steph | December 10, 2004 06:16 PM

Posted by: Steph | Dec 10, 2004 6:36:00 PM

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