Thursday, September 09, 2004
"Statutory" analysis in Hammoud
Judge Wilkins majority's opinion for the Fourth Circuit in Hammoud (available here) puts great emphasis on the use of the phrase "statutory maximum" in Blakely and Apprendi, and he thus finds Blakely inapplicable to the federal guidelines because they are not statutes. In Wilkins words, "Blakely applies to the guidelines only if the Blakely Court redefined the term 'statutory maximum' to include any fact that increases a defendant's potential sentence." But, says Wilkins, "[o]n close examiniation of Blakely, we conclude that the Supreme Court simply applied — and did not modify — the rule articulated in Apprendi."
Though I suppose this is a plausible reading of the Blakely decision, on close examination it raises a lot of questions. First, of course, if the Fourth Circuit is reading Blakely properly, one must wonder why Justices O'Connor and Breyer made so much of a fuss in their Blakely dissents. Obviously, given the energy they spend lamenting the apparent demise of the federal guidelines, Justices O'Connor and Breyer obviously thought Blakely was modifying the rule in Apprendi.
Second, a close reading of Justice Scalia's opinion in Blakely reveals that after the key passage (at slip op. 7) where Justice Scalia (re)defines "statutory maximum," he does not once use that apparently critical phrase again in the final 10 pages of his opinion for the Court. Instead, Justice Scalia speaks of "what state law authorized" (slip op. 8), and not "what a state statute authorized"; he speaks of the "jury's traditional function of finding the facts essential to lawful imposition of the penalty" (slip op. 13), not of the jury's role "finding the facts essential to statutory imposition of the penalty;" he speaks of a defendant's "legal right to a lesser sentence" (slip op. 13), not of a "statutory right to a lesser sentence;" he speaks of "all facts legally essential to the punishment" (slip op. 17), not of "all facts statutorily essential to the punishment." In other words, if Justice Scalia and the others in the Blakely majority were trying not to modify the meaning of Apprendi, the Court's opinion should have been crafted much more carefully.
Finally, as suggested here and here, the Fourth Circuit's conclusion that Blakely "simply applied" Apprendi may have some significant retroactivity consequences. The opinion in many ways intimates that the holding in Blakely was dictated by Apprendi (see p. 66: "in Blakely the Court simply applied the rule of Apprendi to a new set of facts "). But as these recent North Carolina rulings document, at least one Fourth Circuit state has a statutory sentencing guideline system just like the one declared unconstitutional in Blakely. After Hammoud, do all North Carolina prisoners who received enhancements and had not-yet final convictions in June 2000 (when Apprendi was decided) now have strong claims for Blakely relief in the federal courts (even if the state courts won't grant such relief)?
So much to say, so much to say...
In addition to ensuring fans of the Dave Matthews Band will now visit this blog, the title of this post accurately describes both the Fourth Circuit's opinions in Hammoud — all 145 pages — and my own feelings about commenting on the Fourth Circuit's work in Hammoud. Let me here do some preliminary commentary, and allow later posts to zero in on various specifics.
First, let me apologize for giving the Fourth Circuit so much grief about taking so long to issue this opinion. I was not aware that there were so many serious and challenging non-Blakely issues that the court had to confront in Hammoud. (The Blakely discussion does not even start until page 48!) I am still a bit troubled by the court's decisions to rush out an opaque Blakely order and take over a month to provide more guidance, but the complicated legal circumstances in Hammoud make this procedure a bit more understandable.
Second, let me note that the author of the main opinion in Hammoud, Chief Judge William W. Wilkins was the original chair of the original US Sentencing Commission that drafted the original guidelines. Also, as we saw in the Koch en banc ruling from the Sixth Circuit, the Hammoud decision is the near judicial equivalent of a "party-line vote." If my calculations are correct, all three judges joining the Hammoud dissent were appointed by a Democratic President (assuming Judge Gregory is counted as a Clinton appointee), while seven of nine judges finding Blakely inapplicable to the federal guidelines were appointed by Republican Presidents.
Third, let me highlight that, no matter what one thinks about Blakely and its applicability to the federal guidelines, the basic facts of Hammoud's sentencing have to give one pause. As Judge Motz rightly stresses at the start of her dissent, Hammoud's sentence without reliance on facts found by the judge by a preponderance would have been 57 months. But judicial fact-finding required under the federal guidelines led the district judge to increase Hammoud's sentence of less than 5 years to a sentence of 155 years!
Wednesday, September 08, 2004
The 4th Circuit Speaks!!
Perhaps proving the old saying "be careful what you wish for," my long-standing wish to see what the Fourth Circuit has to say to explain its order in Hammoud has been granted with this 145 pages opinion! No wonder it took a while to write (it will likely take a while just to download it). Here is the complicated line up:
Chief Judge Wilkins wrote the opinion, in which Judges Wilkinson, Niemeyer, Williams, Traxler, King, Shedd, and Duncan joined and in which Judge Widener joined as to all except Part VII.C.
Judge Wilkinson wrote a concurring opinion. Judge Shedd wrote a concurring opinion. Judge Widener wrote a concurring and dissenting opinion. Judge Motz wrote a dissenting opinion, in which Judges Michael and Gregory joined. Judge Gregory wrote a dissenting opinion.
Analysis to follow late tonight.
September 8, 2004 in Applicability of Blakely to FSG, Blakely Commentary and News, Blakely in Appellate Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack
Blakely back in the headlines
After an interesting hiatus in media coverage, the reporters are back on the Blakely story. And today we get interesting views on divergent efforts to handle federal sentencings until greater guidance on the guidelines' constitutionality comes from the Supreme Court.
Specifically, this article from Indiana provides more background on ND Indiana Chief Judge Robert Miller's decision to deny the local US Attorney's motion seeking to delay all sentencings. And this editorial from the Munster Times praises Judge Miller's decision saying "justice should not be delayed."
But then this article reports on Mississippi US District Judge David Bramlette's decision to continue all of his federal sentencing cases "until the Supreme Court has given some guidance on Blakely." And this article, while suggesting that New Jersey US District Judge Anne E. Thompson may delay the sentencing of a former financial advisor Alexis Arlett, canvasses different perspectives on this period of Blakely uncertainty and notes that "for Arlett's victims, any more delay is likely to be met with skepticism."
Meanwhile, this article discusses more broadly the post-Blakely challenges for federal prosecutors in Pennsylvania, and this article details how state prosecutors in Washington are struggling with the Blakely aftermath. And this article notes how Blakely might have an impact on the upcoming federal sentencing of Frank Quattrone, the investment banker convicted of obstructing a government probe.
In addition, new commentary on Blakely, Booker and Fanfan can be found on Findlaw, which has thoughtful pieces by Professor Vikram Amar and commentator Ed Lazarus. And though Benjamin Wittes' article on Blakely for the October 2004 issue of The Atlantic Monthly requires a subscription to retrieve on-line, here you can see a snippet of the article and a contributor's quote that Blakely is "the single most irresponsible decision in the modern history of the Supreme Court."
Monday, September 06, 2004
In addition to being a great movie worthy of great web analysis, pulp fiction is a term for a type of literature where selections of fictional short stories are printed in a bulk magazine for distribution. Thus, it makes a great label for the stories to be found in some of the Booker and Fanfan briefs filed in the Supreme Court last week. Though the deftly written briefs submitted by the SG and USSC do not make misrepresentations, the briefs certainly suggest (at least) five pulp fictions that merit focused examination:
Pulp Fiction 1: The US Sentencing Commission is a truly independent agency in which judges make sentencing rules for themselves. As discussed here and here, the USSC both in design and in operation is far more like, in Justice Scalia's memorable phrase, a "junior-varsity Congress" than like a Judicial Branch coach. If the federal sentencing guidelines were written by the Judicial Conference or developed through a true common-law process, the claim for distinct constitutional status might be more plausible. But the SG concedes at pp. 24-25, as it must, that Congressional control over the USSC is considerable. And, Judge Kathleen Cardone recently called "the proposition that the existing Guidelines, which bind a sentencing court to procedures on peril of reversal, are no more than a court rule guiding a judge through sentencing" is "a legal fiction of the highest order" (details here).
Pulp Fiction 2: The federal guidelines merely "channel" or "guide" judicial discretion. The SG and USSC briefs assert repeatedly that the federal guidelines merely guide or "channel judicial discretion." See, e.g., SG Brief at 22; USSC Brief at 15. But of course, as many judges and observers have highlighted, the federal guidelines are guidelines in name only. They are binding legal authority which, in the calculation of sentencing ranges, directly mandate what facts must be considered by judges and also how those facts must be considered. No matter how thoughtful or reasoned, a judge who seeks to exercise her discretion in any manner that does strictly follow the guidelines' "guidance" will be reversed.
Pulp Fiction 3: No parts of the federal guidelines are statutory. Only in a footnote does the SG concede that Congress directly amended the guidelines through the PROTECT Act, and the SG's brief does not explain the potential impact of that reality on the assertion that the Blakely is inapplicable to the federal guidelines because they "are the product of ... a body in the Judicial Branch." And, of course, Congress' direct changes to the guidelines is but one part of the PROTECT Act's alternation of federal sentencing to make the guidelines even more "legislative" and less "judicial."
Pulp Fiction 4: The SRA mandates, and effective guideline reform requires, lax procedures at sentencing. As discussed here and here, the briefs intimate that the success of federal sentencing reform depends upon sentencing judges being able to find many facts by a preponderance of the evidence. But, as many state systems have shown, effective guideline reform does not require complex judicial fact-finding of uncharged "relevant conduct." Moreover, as the USSC brief reveals, the federal guidelines' emphasis on judicial fact-finding of uncharged conduct comes as a result of (highly questionable) choices made by the original US Sentencing Commission, it was not mandated by the provisions of the Sentencing Reform Act. Indeed, the USSC could have devised guidelines from the outset which would have been fully compliant with the rule announced in Blakely — and such a system likely would have been more successful and better received than the current federal guideline system.
Pulp Fiction 5: The issues discussed above matter in the application of Blakely's rule. In the end, the briefs submitted in an effort to sustain the federal sentencing system are all staging Hamlet without the prince. Though pragmatic concerns about applying Blakely to federal sentencing are stressed, lacking in all the briefs is a truly principled argument that defendants should not have a right to a jury find beyond a reasonable doubt sentence-enhancing facts.
Blakely, federalism, retroactivity and pragmatism
As I noted before here, it is significant and telling that no states have filed briefs in support of the federal government's position in Booker and Fanfan. And upon re-reading the briefs seeking to distinguish the federal system from the rule in Blakely, I was struck particularly by the federalism ironies in this chapter of sentencing reform and also by how the SG's arguments may sell out the states on the important question of Blakely's retroactivity. Let me explain:
1. The federalism ironies. Thoughtful observers of modern sentencing reform — from the ABA in its Standards for Criminal Justice to leading academics (see, e.g., Michael Tonry, Sentencing Matters (1996), Richard Frase, Sentencing Guidelines in Minnesota, Other States, and the Federal Courts: A Twenty-Year Retrospective, 12 Fed. Sent. Rep. 69 (1999)) — consistently report that state sentencing reform efforts have generally been successful while federal efforts have not. In Professor Tonry's words, "Few outside the federal commission would disagree that the federal guidelines have been a disaster [while] state guidelines [have] turned out ... surprisingly well." Sentencing Matters at pp. 9-13.
Yet now the SG and USSC are arguing that the distinctive features of the federal system — e.g., that the federal guidelines are (mostly) written by a (mostly ineffectual) commission and that they are (extremely) complicated and require punishment for uncharged conduct — should exempt the federal guidelines from the constitutional rule articulated in Blakely. The first irony is that highly questionable legal distinctions are being made in an effort to "save" perhaps the only guideline system that does not deserve saving. The deeper federalism irony is that arguments for a "federal exemption" to the Blakely rule are being made to a Rehnquist Court that has sought to reinvigorate federalism concepts by exempting states from federal legal burdens.
2. The states' retroactivity problem. Inherent to the SG's argument that Blakely does not apply to the federal guidelines is the assertion that Blakely was just an application of the Apprendi rule. See SG Brief at 18 ("Blakely thus applied the rule of Apprendi"); see also USSC Brief at 18-19. In other words, to exempt the federal guidelines from Blakely, the Supreme Court would essentially have to hold that Blakely was not a new rule, just an application of the rule announced in Apprendi. But so holding would then seem to require states to apply the (not-new) Blakely rule to all convictions not yet final when Apprendi was decided in June 2000.
In other words, the argument the SG is making in an effort to "save" the current federal sentencing system (which, by most accounts, is not worth saving) could have the effect of destroying at least four years of past state sentencing outcomes. Following the SG's arguments to its logical conclusion entails that the argument for exempting the federal guidelines from Blakely is not pragmatic at all, since pragmatically speaking such a ruling will create many more headaches and problems for state sentencing systems than it might save for federal sentencing. Thus, despite my earlier suggestion here that the federal debate over Blakely is a dispute between principle and pragmatism, I now realize that both principle and pragmatism support the application of Blakely to the federal system.
September 6, 2004 in Applicability of Blakely to FSG, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (5) | TrackBack
Great brief, wrong case: the three Senators' brief
In comments, Thomas Yerbich quite succinctly summarizes the amicus brief filed by US Senators Orrin G. Hatch, Edward M. Kennedy and Dianne Feinstein (available here):
The Senators' amicus brief provides an excellent recap of the history of the Sentencing Reform Act and its intended remedial effect. Notably absent from the Senators' amicus brief is any discussion whatsoever of the Sixth Amendment, in fact it is not even mentioned!
Indeed, I was struck while reading the brief that it would be an extremely effective in a case challenging mandatory minimum sentences or the provisions of the Feeney Amendment. The three Senators' brief stresses that the Sentencing Reform Act of 1984 (SRA) "intended sentencing judges to have flexibility to move a sentence both upward and downward within the applicable guidelines range based on an individualized consideration of the offender and his offense and, in unusual cases, to depart upward or downward outside of the guidelines range." Yet mandatory minimums and the Feeney Amendment do far more to undermine this intended "flexibility" and "individualized consideration" than would a holding in Booker and Fanfan that defendants have a right to have proven beyond a reasonable doubt facts requiring enhanced sentences.
Of course, Justices Kennedy and Breyer both appreciate that mandatory minimums undermine the laudable goals of the SRA. Justice Kennedy in his Koon decision stressed the importance of judicial departure authority within the SRA, and he has long assailed mandatory minimums as "unwise and unjust." (See, most recently, this important speech to the ABA last year.) Similarly, Justice Breyer has long lamented the impact of mandatory minimum statutes on the operation of the guidelines system he helped create:
[S]tatutory mandatory sentences prevent the Commission from carrying out its basic, congressionally mandated task: the development, in part through research, of a rational, coherent set of punishments.... Every system, after all, needs some kind of escape valve for unusual cases.... For this reason, the Guideline system is a stronger, more effective sentencing system in practice.
In sum, Congress, in simultaneously requiring Guideline sentencing and mandatory minimum sentencing, is riding two different horses. And those horses, in terms of coherence, fairness, and effectiveness, are traveling in opposite directions. [In my view, Congress should] abolish mandatory minimums altogether.
Speech of Justice Stephen Breyer, Federal Sentencing Guidelines Revisited (Nov. 18, 1998), reprinted at 11 Fed. Sent. Rep. 180, 184-85 (1999). Indeed, Senator Orrin Hatch himself has long been on record noting the major faults of mandatory sentences and calling for a complete reexamination of the issue. See Orrin G. Hatch, The Role of Congress in Sentencing: The United States Sentencing Commission, Mandatory Minimum Sentences, and the Search for a Certain and Effective Sentencing System, 28 Wake Forest L. Rev. 185 (1993).
In other words, as I have stressed in my own writings, the SRA was a great piece of legislation, but the federal sentencing system in practice has not in fact achieved its laudable goals. That is why I have suggested here that there is a strong case to be made that applying Blakely to the federal guidelines would in fact help give effect to the intent of Congress in enacting the SRA.
The three Senators' brief does not even mention the Sixth Amendment perhaps because it hard to argue that respecting defendants' rights to have facts proven to a jury beyond a reasonable doubt itself undermines the goals of sentencing reform. Of course, Justice Scalia and four other Justices obviously understand this when they stress that Blakely "is not about whether determinate sentencing is constitutional, only about how it can be implemented in a way that respects the Sixth Amendment." And these realities in part explain why I have speculated here that Justices Kennedy and Breyer may join the "Blakely five" before any Justice in that group shrinks away from carrying the Blakely principle to its logical conclusion.
Sunday, September 05, 2004
When did Judge Martin enter the Bizarro World?
This weekend I have had the chance to review the briefs filed in the Supreme Court last week in the Booker and Fanfan cases. Especially when reading arguments that Blakely should not apply to the federal guidelines, I am struck by how out of touch with reality the briefs seem to be. The briefs describe not the current federal guidelines system, but rather an idealized federal sentencing system — a system which could have come to pass after the enactment of the Sentencing Reform Act, but which does not really exist now. See generally A Common Law for This Age of Federal Sentencing: The Opportunity and Need for Judicial Lawmaking, 11 Stanford Law & Policy Review 93 (1999).
In subsequent posts, I hope to highlight the fairy-tale nature of parts of the SG and USSC briefs, but in this space I must first wonder out loud about the amici curiae brief filed by former US District Judge John Martin on behalf of an "ad hoc group of former federal judges." The brief itself, as well as some insightful reader comments about its "Alice-in-Wonderland quality," can be found here.
As I was reading this brief, I could not help but think of the question that is the title of this post: "When did Judge Martin enter the Bizarro World?" As is well-known to true Seinfeld fans, the Bizarro World is a place inhabited by imperfect duplicates of Superman and his friends who do everything backwards. (I have uploaded the cover of this comic classic, and here is a link with helpful background on the basic bizarro concept and here is a link with a lot more about the place of Bizarro in Superman lore.)
For followers of federal sentencing, former US District Judge Martin has been something of a "Man of Steel" for his courageous decision to relinquish his lifetime appointment in part, he said, to protest the unjust nature of the federal sentencing process. In this widely discussed New York Times Op-ed entitled "Let Judges Do Their Jobs" (published exactly a year to the day before Blakely was handed down), Judge Martin explained that he was resigning from the federal bench because "Congress has tried to micromanage the work of the commission and has undermined its efforts to provide judges with some discretion in sentencing or to ameliorate excessively harsh terms." Judge Martin concluded his astute criticisms of federal sentencing by saying that "I never thought that I would leave the federal bench [but] I no longer want to be part of our unjust criminal justice system."
Similarly, this report of Judge Martin's remarks at the ABA Kennedy Commission hearings highlights some of the criticisms of federal sentencing he has been sharing with audiences around the country for the last year:
John Martin ... said that a system that does not have a departure rate of "25 to 30 percent cannot do justice." Absent appropriate judicial discretion to depart from the guidelines, federal sentencing is currently imposing sentences that are too harsh, Martin argued.... Martin criticized the system for forcing judges to impose "incredibly harsh sentences" without giving them the ability to properly differentiate between offenders.
But now — apparently after a trip to the Bizarro World (or should I say the Blakely World) — Judge Martin and others assert that federal judges have "broad judicial discretion" because the federal guidelines "substantially preserve a court's sentencing discretion" in a system "more analogous to the traditional indeterminate scheme" than to the "determinate statutory scheme at issue in Blakely." Martin Brief at pp. 5-6, 9-10. Perhaps in the Bizarro World it is true, as this brief claims, that the federal guidelines "more closely resemble the regime at issue in Williams than in Blakely," id. at 14, but most federal sentencing observers and participants likely would not consider this a fair description of the real world of federal sentencing today.
Also, apparently in the Bizarro World of federal sentencing the Feeney Amendment was just an odd footnote to the guidelines' preservation of "substantial judicial discretion," and the "24% departure rate in the Second Circuit" is more representative of federal sentencing realities than the "6% rate of departure in the Fourth Circuit." See id. at 13-22. But, even these pre-Feeney Amendment statistics show that the majority of federal circuits had a departure rate under 10% in fiscal year 2002. And, of course, the Feeney Amendment further constrained judicial discretion to depart, and it reversed legislatively the Supreme Court's Koon decision emphasized throughout the Martin brief. Moreover, if federal sentencing in the Second Circuit is sound because "judicial discretion over sentencing remains both broad and meaningful in those circuits that have recognized the full extent to the Guidelines' departure power," id. at 22, why did Judge Martin need to resign? He was a judge in the Southern District of New York, which is part of the Second Circuit.
Gosh knows many wish that federal sentencing was in fact like Judge Martin and his colleagues describe in their brief, and I laud the effort to emphasize the importance of substantial judicial discretion in a well-functioning sentencing system. Indeed, in my own writings I have stressed that an improved departure mechanism (and the eliminatation of many mandatory minimum sentences) could remedy much of what ails federal sentencing. See Balanced and Purposeful Departures: Fixing a Jurisprudence that Undermines the Federal Sentencing Guidelines, 76 Notre Dame Law Review 21 (2000).
But, as too many judges and defendants and defense attorneys know too well, federal sentencing now takes place in the Feeney World, not in the Bizarro World. Thus, it is hard to fully understand why Judge Martin is writing so forcefully in defense of a system that he himself felt he had to quit because it was unjust.
Saturday, September 04, 2004
Texas-sized Blakely analysis
In a wonderful and thorough analysis of issues that now confront the Supreme Court in Booker and Fanfan, US District Judge Kathleen Cardone of the Western District of Texas does not let the Fifth Circuit's ruling in US v. Peneiro, 377 F.3d 464 (5th Cir. 2004), keep her from opining on the true meaning of Blakely for federal sentencing law. In US v. Chapparro, 2004 U.S. Dist. LEXIS 17531 (W.D. Tex. Sept. 1, 2004), Judge Cardone recognizes that "Pineiro is undisputedly the law of this Circuit," but then offers a stunningly detailed exegesis and analysis of Blakely issues "in the event the Court of Appeals elects to reconsider its holding in Pineiro."
Though a very long opinion, Chapparro is worth a thorough and full read because it first thoughtfully discusses "the structure and application of the Guidelines [and] relevant Supreme Court precedent leading up to the Blakely decision," and then turns to "a structural comparison between the federal guidelines and the guidelines before the Court in Blakely [in order to] address the significance, if any, of the fact that the federal guidelines are promulgated by an independent agency whereas the guidelines before the Court in Blakely are promulgated by a legislature."
Because Judge Cardone's analysis is so rich, I cannot do it justice with a brief summary. But these key passages I think capture the most important highlights:
Given the past characterization of the Guidelines as binding on judges rather than suggestive, it is difficult to ascertain a principled reason by which an agency delegated lawmaking authority restrained only by a Congressional right of refusal would be permitted to effect the substantive rights of defendants without offending the Constitution while Congressional action of the exact same nature would offend the Constitution. Such an interpretation reduces the right to jury trial to a "mere procedural formality," Blakely, 124 S. Ct. at 2538, in which the essential question becomes not the right itself but rather the source of the procedure. The right to jury trial could be vitiated by simply transferring lawmaking authority to an agency....
[I]t would therefore take a legal fiction of the highest order embracing the proposition that the existing Guidelines, which bind a sentencing court to procedures on peril of reversal, are no more than a court rule guiding a judge through sentencing and therefore constitute a form of agreement with the Commission by which discretion is ceded in exchange for predictability. Only such a fabrication would explain why an offender has rights under statutory guidelines and lacks the same rights under a regulatory guideline.
Friday, September 03, 2004
Complete SG Brief in Booker and Fanfan
A number of my savvy readers noticed that the Government's brief in Booker and Fanfan posted earlier this week lacked the table of contents and all those other introductory pages. Thanks to another FOB ("friend of blog"), I now have a complete version of this important document. It can be downloaded here:
Thursday, September 02, 2004
I have a lot more to say about all the Booker and Fanfan briefs filed yesterday (available here and here), but a thoughtful reader suggested an interesting idea/question to keep in mind when reading (or re-reading) the SG's brief. The idea/question is: "Who is the government attempting to peel off from the Blakely majority?"
As I have been repeatedly saying to the students in my sentencing seminar, there is an interesting history and story connected to each of the nine Justices in the whole Apprendi/Blakely line of cases. Because of their forceful opinions in a number of cases, it seems unlikely either Justice Stevens or Thomas is likely to shrink from applying Blakely to the federal guidelines.
Some might say the same about Justice Scalia, though the thoughtful reader notes that given Justice Scalia's "break from the pack in Harris and his much-rumored initial dissent in Ring," Justice Scalia might "be looking for ways to cabin the pro-defendant effects of his brightline position." Since Justice Scalia was the swing (silent) vote in Harris, this speculation is sensible. However, I really think Justice Scalia would have written Blakely much differently if he wanted to save the federal system, and I also think he is much too smart to not have realized the seismic impact his broad Blakely language would have on the federal system.
Justices Ginsburg and Souter have said the least "on the record" in this line of cases, though Justice Ginsberg wrote the important Ring decision (which extended Apprendi to capital sentencing and reversed a recent precedent to do so) and Justice Souter wrote the important Jones decision (which first articulated the key language that became the Apprendi rule). In addition, both Justices signed on to Justice Thomas' forceful dissent in Harris.
Finally, I also think it is worthwhile to speculate about whether any of the Blakely dissenters might now "switch teams." My instinct is that Chief Justice Rehnquist and Justice O'Connor would be unlikely to ever play a role in the federal aftershocks of Blakely's "Number 10 earthquake." But Justices Kennedy and Breyer have such a dynamic history in expressing their views about both the doctrines and policies of federal sentencing (consider cases like Koon and the public speeches they've both made about problems with federal sentencing policies and practices). And Justices Kennedy and Breyer have both in cases like Ring and Harris said interesting things about the logic and reach of Apprendi.
Though Justices Kennedy and Breyer obviously did not want to extended Apprendi to guideline sentencing, now that the Blakely earthquake has happened, I think either or both might be more inclined to actively help with post-Blakely clean-up efforts rather than continue complaining about the ground shaking.
Applying Blakely to the federal sentencing guidelines
There is so much to say about the arguments made by the SG in its merits brief (and by the USSC and the former federal judges in their amicus briefs) that "Blakely does not apply to the Federal Sentencing Guidelines." I suspect many posts (and I hope a lot of comments from readers) will over time allow me and others to think through all the aspects and implications of these arguments. For now, I want to make a few very general comments:
1. After Blakely, it is possible and perhaps helpful to set up a dichotomy between statutory structured sentencing systems like Washington's (which now must grant defendants the (waivable) right to a jury trial on any and all facts which raise the effective maximum sentence) and traditional indeterminate sentencing systems (in which judges have enormous and essentially unfettered discretion to consider (or not consider) any and all facts of interest to the sentencing judge). I find it truly remarkable that the SG and USSC are suggesting, and that a group of former federal judges are expressly stating, that the federal sentencing guidelines "more analogous" to a traditional indeterminate sentencing systems than to Washington's structured sentencing system.
2. Though all the briefs make a game effort at arguing that "Blakely does not apply to the Federal Sentencing Guidelines," I saw precious little argument in the briefs that Blakely should not apply to the FSG. I might find the arguments to distinguish the federal system more compelling if I could fully understand what would be so harmful about defendants having a (waivable) right to a jury trial on facts which raise their effective maximum sentence. I understand that there could be great harm in how Congress or others might respond to defendants having such a right. But I am not sure why a court's interpretation of the scope of individual rights can or should be influenced by the (speculated) response of other institutions to those rights.
3. As I discussed at some length in my analysis of the Sixth Circuit's decision in Koch (details here), many of the arguments put forward to distinguish the federal system structurally would be much more compelling if the federal sentencing guidelines were written by the Judicial Conference of the US — as Professor Kate Stith and Judge Jose Cabranes have recommended in their wonderful book Fear of Judging (at p. 159). But, as the SG's brief concedes at pp. 24-25, the USSC both in design and in operation is far more like, in Justice Scalia's words, a "junior-varisty Congress" than like a Judicial Branch coach. Moreover, as Steve Chanenson has so astutely noted in his recent article, Congress' recent passage of the PROTECT Act has constrained and transformed the USSC to make it more like a "traditional" legislative agency and less like a group of judges making sentencing rules for themselves.