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February 21, 2005

Mandatory minimum challenges and test cases?

Especially with the plain error doctrines creating the prospect that some (perhaps many) defendants will not get the benefits of the Blakely/Booker rulings simply because they failed to raise the issue at pre-Blakely sentencings, I have been wondering lately whether defendants, in both state and federal systems, still subject to mandatory minimum provisions based on judicial fact-finding have been raising constitutional challenges simply in order to preserve the issue until the Supreme Court may have occasion to reconsider its Harris ruling.  Many folks have been predicting Harris' demise since Blakely was decided, and that decision's status was left unaddressed in Booker (although I have heard arguments that Harris is stronger and that Harris is weaker after Booker).

More generally, as I suggested in this post about broader due process principles, the reasoning of Justice Stevens' merits majority in Booker might support a wholesale reconsideration (and invigoration) of due process concepts at sentencing.  Indeed, as one thoughtful commentor suggested here (see the third comment), the whole arena of mandatory minimum sentencing might be ripe for new constitutional challenges in the wake of Blakely and Booker.  I wonder if there are any on-going efforts within the defense bar to identify sympathetic defendants with compelling facts to provide an effective test case for a new set of constitutional arguments against mandatory minimum sentencing.

UPDATE: A reader followed-up on this post by sending along a recent cert. petition challenging, on equal protection grounds, an application of North Carolina's Habitual Felon Act.  Though this petition, which is available for downloading below, does not build on Blakely and Booker, it reveals one of the many ways in which the application of mandatory sentencing laws can be challenged.

Download nc_mandatory_cert_pet.doc

February 21, 2005 at 09:36 PM | Permalink


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