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July 16, 2005

More great sentencing reading, especially for SCOTUS watchers

I am, slowly but surely, working through all the amazing sentencing article in this great Columbia Law Review issue.  But, especially with a Supreme Court vacancy garnering everyone's attention, I want to spotlight another interesting sentencing piece that is on my night-table. 

Professor Richard Myers, in a piece entitled Restoring the Peers in the "Bulwark": Blakely V. Washington and the Court's Jury Project, 83 North Carolina Law Review 1383 (June 2005), explores the reasons why a seemingly unusual coalition of Justices came together to champion jury trial rights in Apprendi and Blakely and Booker.  Here is a snippet from the introduction:

The opinions in these cases reveal that the so-called "centrist" Justices on the current Court have difficulty identifying the right to jury trial — at least as defined by the Blakely majority — as a mainstream value. The unconventional lineup in the Blakely/Booker line of cases confounds the conventional wisdom, as well as the social scientists' models.... These cases, which together have fundamentally altered state and federal structured sentencing guidelines systems, suggest that for some reason, the "centre cannot hold."

The Court's holding in Blakely extends a line of recent cases exploring the meaning of the right to a jury trial and establishes a readily understood principle for deciding what the right means and when it is being eroded. The Blakely line of cases shows that the jury stands at a constitutional crossroads where substantive and structural issues overlap.  The jury right implicates substantive concerns critical to the left, such as innocence, appropriate levels of punishment, and proportionality, as well as structural concerns critical to judicial conservatives, such as separation of powers and democratic theory principles.  This position ensures that the right to a jury trial will endure as a core constitutional value.

The insights developed by Professor Myers reinforce some points I have made here and here and here that a new Justice replacing the "centrist" Justice O'Connor could have an interesting and perhaps unexpected impact on the Supreme Court's still developing sentencing jurisprudence.

In the interest of full disclosure (and also self-promotion), I should note that another passage in Professor Myers' article also garnered my attention.  In the course of noting the academic contributions to the on-going debate over sentencing reform, Professor Myers kindly notes:

Professor Doug Berman's weblog, Sentencing Law and Policy has become the informational locus of the debate, with multiple courts citing it in opinions, and serious scholars of sentencing policy checking it almost daily.  Opinions and other source materials appear there within hours, rendering it the equivalent of a real-time treatise that the participants consult as they shape the debate.

July 16, 2005 at 05:45 PM | Permalink

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"Professor Doug Berman's weblog, Sentencing Law and Policy has become the informational locus of the debate, with multiple courts citing it in opinions, and serious scholars of sentencing policy checking it almost daily. Opinions and other source materials appear there within hours, rendering it the equivalent of a real-time treatise that the participants consult as they shape the debate."

How true!

Posted by: Tom Lincoln | Jul 16, 2005 9:24:29 PM

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