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July 28, 2004

Deep Thoughts...

In the wee hours of the night, the daily mania of Blakely developments gives way to broader reflections on our amazing new sentencing world:

1. Though perhaps nobody has time to ponder such questions, I wonder about the ethical obligations of lawyers and others operating in the criminal justice system at a time of such great uncertainty. Does zealous advocacy and/or a commitment to justice have a unique spin when nobody really knows the current rules nor can reasonably predict the future rules? This document, prepared by the Appellate Defenders, Inc., got me thinking about these issues through its "alert" that Blakely "creates responsibilities for appointed appellate counsel." I have also been thinking in this vein about probation officers (the so-called "guardians of the guidelines") and staff at state and federal sentencing commissions. Do the persons responsible for administering "the system" have a new set of professional responsibilities when the system has been so radically disrupted?

2. Though Blakely is obviously the progeny of Apprendi, might it also be viewed as an indirect by-product of the decision in Ewing v. California, the 2003 decision upholding a severe application of California's 3-strikes laws against an Eighth Amendment challenge? Specifically, I think Justices Stevens, Ginsburg and Souter may have been particularly eager to regulate sentencing procedures through the Sixth Amendment and the Due Process Clause after Ewing made clear that a majority of the Court was not eager to regulate sentencing outcomes through the Eighth Amendment. Conceived in this way, we might then notice an ironic mirror image of the High Court's regulation of capital punishment, which Furman made a matter of Eighth Amendment jurisprudence only one year after McGautha turned away a Due Process challenge.

3. Did the Framers have a peculiar understanding of sentencing proportionality? If I am reading Washington's petition for rehearing properly, it seems that the maximum punishment around the time of the Founding for manslaughter on federal property was only three years, while the maximum punishment for stealing or falsifying courts records was seven years and whipping up to 39 stripes. See petition at pp. 3-4 & n.4. (Aside: Washington earns chutzpah bonus points for implying that the whipping provision shows the Framers "were progressive sentencing reformers" for "recognizing alternative sanctions.")

July 28, 2004 at 02:15 AM | Permalink


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Your reference to ethical issues that Blakely has raised is timely. I'm a defense lawyer in North Carolina, and have recently been confronted with the implications of taking inconsistent positions regarding Blakely's effect on the Guidelines. In one case, it might be in my client's interest to argue that the Guidelines are implicated, cannot be severed, and so are unconstitutional, period. In another, it might be in my client's interest to argue that the Guidelines are implicated, but can be severed, and survive essentially without their aggravating provisions. Other positions are possible, too, of course, depending on the facts and circumstances of the case.

In any event, I have a number of cases, both before the district courts and on appeal. At least in North Carolina, there are some ethical limits on taking inconsistent positions, i.e., you can't do it if there's a realistic position that you'll create precedent in one client's case that hamstrings another client. That seems silly to me under the circumstances, since a substitute lawyer would do nothing differently from what I am doing, but the rules are the rules, right? I assume every federal criminal defense attorney out there has this same problem. I'm planning to start collecting written waivers from my clients, but I'm interested in hearing what others are doing.

Posted by: Jeff Welty | Jul 28, 2004 11:16:55 AM

Other positions are possible, too, of course, depending on the facts and circumstances of the case.

Posted by: Robe de Soirée 2013 | Dec 13, 2012 1:25:37 AM

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