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April 17, 2007

Some (needed?) help for SCOTUS on Sixth Amendment "first principles"

As detailed here and here, this morning was civil at the Supreme Court: the Court released opinions in three civil cases (and the vote alignments in all three cases seem notably unpredictable).  As Lyle Denniston notes, now the earliest-argued case still undecided is "James v. U.S. (05-9264), on whether a state conviction for attempted burglary can be treated as a violent felon under federal armed criminal sentencing law."  More opinions are to be released tomorrow, so maybe then we will finally see a SCOTUS version of "Sweet Baby James."

Of course, Claiborne and Rita are still pending, and my anticipation is starting to build (even though I doubt we will see these decisions until June).  Adding to my anticipation is an e-mail I received from YLS Professor Kate Stith, who reports to me that her student "Richard Re, YLS '08, has a nuanced exposition of the argument [that] Sixth Amendment 'first principles' resolve the apparent tension between Blakely and Booker I, on the one hand, and Booker II, on the other."  That explanation can be downloaded below, and here is a taste to whet your appetite:

If reasonableness review is to be consistent with the Sixth Amendment, then Sixth Amendment doctrine must be re-conceptualized so as to differentiate between sentencing guidelines imposed by legislatures and those generated by judges themselves.  But why would the Blakely and Booker rules apply only when the legislature is involved?  In order to answer this question, we have to return to Sixth Amendment first principles.

Download yls_solving_the_booker_paradox.doc

April 17, 2007 at 01:10 PM | Permalink

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Comments

oh BABY. With that sort of introduction , I can't WAIT to read Richard's full article. How long it has been since someone to resolve the tension between Blakely and Booker I.

AMEN.

_prof King

Posted by: Professor King | Apr 17, 2007 2:30:11 PM

The essay's most insightful point is this: "The combined effect of [Blakely and Booker] is that the legislature can limit judicial discretion only by--and at the price of--empowering the jury."

This may well be the best way to make sense of the bizarro, post-Booker sentencing world; but to base this interpretation on a purported "return to Sixth Amendment first principles" is not close to accurate. The Sixth Amendment was not jury-empowering only as against Congress, but as against JUDGES as well. In fact, juries PRIMARILY were intended to be the popular voice in the judiciary thought necessary to provide a check on the unelected judges.

I applaud trying to reconcile the two Booker opinions, but to describe this attempt as faithful to the Sixth Amendment's first principles is simply revisionist.

Posted by: | Apr 17, 2007 4:00:41 PM

FYI: Whoever is signing "Professor King" is not me - njk

Posted by: | Apr 17, 2007 4:11:43 PM

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Posted by: DFDF | Jul 29, 2007 1:22:54 AM

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