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September 24, 2006

Lots of interesting Sunday sentencing commentary

I am up early to see if the US can stage a Ryder Cup comeback. (I'm not holding my breath, especially because it seems to be an Irish weekend.)  Before the TV coverage starts, I have noticed a number of interesting and thoughtful commentaries in the Sunday papers:

The piece by Bob Weisberg is about Blakely, and he compares the impact of Blakely to the impact of cases like Miranda and Gideon.  As detailed writings here and here right after Blakely came down, I am a big fan of such comparisons.

September 24, 2006 at 07:03 AM | Permalink


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Doug, I, too, enjoy comparing Blakely to other famous Supreme Court cases. But I think Bob Weisberg is underestimating the impact of Blakely by comparing it to Miranda.

For me, Blakely is more like Marbury v. Madison, the seminal case in which Chief Justice John Marshall solidified the role of the Court as enabling it to strike down acts by the democratic legislature if they contravene fundamental beliefs contained in the Constitution.

In McMillan v Penn, the Court strayed away from Marbury by saying if the legislature says something is a sentencing factor instead of an element, the Court will give deference to that characterization. Justice Stevens' dissent in McMillan was vindicated in Apprendi/Blakely and the power of the Court to protect the individual against actions of the legislature and judiciary which transgress constitutional protections has been restored.

In my view, Marbury is the biggest case of all, without which the Rule of Constitutional Law would be a hollow promise. Apprendi/Blakely is a close second.


Posted by: bruce cunnningham | Sep 24, 2006 11:50:53 AM

Jeffrey Fisher, who represented Blakely in the Supreme Court and now represents Burton, disagrees. He says Blakely was no big deal. It was just a straightforward application of Apprendi. It was so obvious that the outcome was not debatable among reasonable minds. Hence, it was not a new rule.

Personally, I think he is quite wrong. I will have more on this October 2.

Posted by: Kent Scheidegger | Sep 24, 2006 2:59:58 PM

I agree that Apprendi was the big one and Blakely simply defined what was meant by the phrase "prescribed statutory maximum." However,it was Blakely, not Apprendi, which nullified North Carolina's Structured Sentencing Law, and the laws of half a dozen other states.(our supreme court had dodged Apprendi by saying the statutory max was top of the aggravated range) But you are right Blakely was preordained by Apprendi. I was so sure of that, and so convinced that Blakely would not back off one inch from Apprendi that I closed my office and took both my secretaries to DC to hear the Blakely oral arguments so they could say they were present when our structured sentencing law went down the tubes. bruce

Posted by: bruce cunningham | Sep 24, 2006 3:39:23 PM

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