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July 28, 2004

If you destory it, they will come...

It seems the Blakely decision has created a new Field of Dreams, because judges are coming back to federal sentencing now that the guidelines have been "unbuilt." In US v. Sisson, Senior US District Judge Edward Harrington reports that he "shall recommence drawing criminal cases on September 1, 2004 in view of the US Supreme Court's decision in Blakely." As he explains:

On June 19, 2001, the Court ... decided not to continue to draw criminal cases because under the Sentencing Commission Guidelines the power to impose a sentence has been virtually transferred from the court to the government, which, as the prosecuting authority, is an interested party to the case. This transfer constitutes an erosion of judicial power and a breach in the wall of the doctrine of the separation of powers. The government, not the judge, the impartial arbiter, has the power to determine the severity of the punishment....
In returning to the criminal draw, the Court shall follow the implications of Blakely on the Sentencing Commission Guidelines as cogently reasoned in the case of United States v. King, No. 6:04-cr-35-Orl-31KRS (M.D. Fla. July 19, 2004), pending further direction by the Court of Appeals for the First Circuit. In brief, it shall treat the Guidelines as unconstitutional in all cases and shall adhere to the statutory commands setting sentences. In other words, in all cases, the Court shall handle the sentencing as courts handled sentencing before the Guidelines -- by making a full examination of an individual defendant's personal character, family responsibilities, medical and mental condition, criminal record, and the particular circumstances surrounding the crime and imposing an appropriate sentence within the broad range set by Congress, after deep reflection informed by his experience in life and in the law. Despite a return to an indeterminate sentencing scheme, the Court "will continue to rely on the Guidelines as recommendations worthy of serious consideration." King, at 12.

This is, of course, a wonderfully ironic reversal of the tendency of federal judges to stop taking criminal cases (or even retiring like Judge John Martin) because of the dynamics of federal sentencing.

Many thanks for the pointer to Sisson goes to Petert Schmidt at USSGuide, which continues to effectively assemble here the ever expanding corpus of Blakely decisions in lower federal courts.

July 28, 2004 at 08:22 AM | Permalink


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This transfer constitutes an erosion of judicial power and a breach in the wall of the doctrine of the separation of powers.

Posted by: Robe de Soirée 2013 | Dec 13, 2012 1:23:57 AM

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