June 12, 2005
Blakely/Booker case cites top 5000
With still two weeks until Blakely celebrates its one-year anniversary, a search this morning of "(Blakely or Booker) & sentenc!" after June 24, 2004 in Westlaw's allcases database produces 5036 "hits" (with a breakdown of 2156 in allstates, 2880 in allfeds). The same search in Lexis, for either the last year or the last six months, gets interrupted "because it will return more than 3000 results." The search in Lexis for the last month produces 850 hits, suggesting that we may see on-line over 10,000 cases citing Blakely or Booker in 2005.
Especially given that these numbers do not reflect the tens of thousands of sentencings that Blakely or Booker have impacted which do not result in an on-line opinion, I view this data as providing some support for my hyperbolic claim in this Slate piece last year that "Blakely is the biggest criminal justice decision not just of [the 2003 SCOTUS] term, not just of this decade, not just of the Rehnquist Court, but perhaps in the history of the Supreme Court." Indeed, as we approach Blakely's one-year anniversary, I encourage readers to suggest in comments other ways to take stock and assess the Blakely year that was.
June 12, 2005 at 11:38 AM | Permalink
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As someone who immediately started litigating Blakely for our clients, I have seen a 360 degree turn around. Defendants are worse off now than pre Blakely. This is because most district courts are using their advisory guidelines and finding sentences above or near the guidelines. In addition, the substantive holding of Booker is being ignored by most courts. In the recent 9th Circuit ruling in Ameline III, the court, by allowing a preponderance of evidence evaluation of the PSR, has basically ignored Blakely and Booker substantive. Most defenders appear apathetic and have not zealously objected to the following maxim which I believe is still valid law under Booker: An unreasonable sentence would be one where the district court sentenced a defendant using the advisory guidelines with facts that were not found true by the jury nor admitted by the defendant. It is imperative that objections to the PSR, requests for jury findings, and any other measure designed to advance the Booker substantive holding be made at the trial level. Unfortunately, probation officers now have as much power as a district court judge because they make up whatever sentence they feel is appropriate. It is equally important that a defender files writs of certiorari on any case where the court made an unreasonable sentence that included extra verdict enhancements outside the plea or jury verdict. I have a case this week where I requested drug quantity prior to trial. Only threshold amounts were found by the jury. The court on the mandatory guidelines gave the defendant life. The court then prior to Ameline III being decided, requested the case be remanded and joined my motion. Now the government is seeking life again, probation has now recommended 35 years. I am seeking a 10 year sentence based on the findings of threshold only. If anyone has any ideas I would like to try and save this person's life this week. If anyone thinks I missed something in the analysis, please chime in. I will keep asserting Blakely issues until the Supreme Court takes another and defines reasonability as consistent with the Booker substantive holding. Ronald Richards, Esq.
Posted by: Ronald Richards | Jun 12, 2005 12:07:16 PM
Ronald, I can understand you frustration that not much has changed in the federal system, although the US Sentencing Commission stats indicate a lot more defendants are getting sentences below the guidelines than above. Federal defendants may not be much better off, but I have a hard time seeing that they are worse off now that pre-Blakely.
More broadly, though, your point is well-taken. Because most lower courts are eager to maintain business as usual, Blakely's impact has been muted to a significant extent in both the federal and state systems. Of course, this is also essentially what happened after Apprendi (until Blakely came along). And if the prior conviction exception comes crashing down....
Posted by: Doug B. | Jun 12, 2005 8:07:17 PM
I don't think the problem is that courts are "ignoring" the Stevens majority decision in _Booker_ - it's that the Breyer majority effectively undercut the Stevens majority. Once the Guidelines were magically made advisory, the host of Sixth Amendment issues addressed by Stevens went out the window. If not out the window, they at least became very difficult to make to lower courts.
Posted by: JDB | Jun 13, 2005 8:25:46 AM
Defendants are worse off now. In our case on a limited remand the judge says he will give more time rather than less, no substantiation and all "relevant conduct" type of sentencing which Apprendi and Booker say should not be. His guideline range was 37-41, they added 46 months at sentencing for "relevant conduct" and now he could face more time. (7th Circuit) His attorney did not make the appropriate objections at sentencing.
8th Circuit you're seeing lower initial sentences. 7th is a nightmare. They are just boiler-plating these limited remands. No one will get any relief, just like with Apprendi.
The Supreme Court let us down by not making it unconstitutional to sentence for "relevant conduct." I don't see any other way around it. The courts are ignoring the two rulings to this point.
Prosecutors are getting their "second bite of the apple" and don't have to prosecute on everything, but Def will still do time for it.
Posted by: ST | Jun 13, 2005 1:04:00 PM