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July 16, 2004

Law professors always want to have the last word

Though everyone knows that Dahlia Lithwick rocks --- and she really does --- I couldn't let her have the last word in the on-going debate over whether the Supreme Court needs to get in gear and take a Blakely case ASAP. Luckily for me, the great folks at Slate allowed me to respond to Dahlia's argument that there no reason for the Supreme Court to feel any urgency about Blakely developments. You can find here my article entitled, "Supreme Court Cleanup in Aisle 4: Blakely is too big and messy to ignore." I look forward to hearing what everyone thinks about my attempt to do Blakely hip.

July 16, 2004 at 09:33 PM | Permalink


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We've been studying Blakely in the Federal P.D.'s office and keeping up with this blog so we'll be up to date. Great work!

I think you overstate the impact of Blakely. I think Teague will bar it from having too much of an effect on cases not on direct appeal. The system is in a temporary chaos because the guidelines were never conceived to co-exist with the necessity of jury verdicts on the numerous enhancements. But that will end. Congress is not going to let district judges engage in indeterminate sentencing. I think there are several ways Congress can amend the guidelines in a way that will permit the courts to make adjustments to the base offense level without offending Blakely. When that happens, it will be business as usual again.

Meanwhile, in my town of Memphis, the Guidelines are only advisory and the district judge may reject them if he be inclined to do so. If you go 70 miles south to the district court in Oxford, Mississippi, it's as if Blakely never happened. The Guidelines are binding and it's business at usual.

The Second Circuit has said en banc that it doesn't know what Blakely means and has certified three questions to the Supreme Court. Yet in New York, Judge Weinstein has called a jury to hear sentencing enhancement issues.

Notwithstanding all this, the circus will end at some point before the entire sentencing system collapses.

Posted by: Joe Phelan | Jul 17, 2004 12:31:33 AM

Excellent article. I think you make a number of critical points both in response to Ms. Lithwick, and in furtherance of your own argument that Blakely is the biggest thing since the Bill of Rights.

It will be interesting to see how this mess gets straightened out. As someone who writes a lot on Art. I/II/III Constitutional issues, I will be interested to see how the various branches interact to solve this problem. In theory, one might expect Congress to play the lead role, since what's really needed here are some new laws. But this weird judicial/legislative hybrid of the Sentencing Commission may play an interesting role too. And of course, all 94 U.S. Attorneys and the Justice Department are going to get a vote. In the end, I think we'll have a great object lesson about the role that each branch plays in the process... sort of a living test for the old counter-majoritarian hypothesis.

Posted by: Phillip Carter | Jul 17, 2004 10:02:07 AM

Fabulously pithy.

Posted by: LvL | Jul 17, 2004 3:24:32 PM

How many metaphors can you work into a 1500-word op-ed, Professor Berman? Bulls racing through china shops, pit bulls on floss, Rome burning, the Valdez sinking... am I mising any more? Slate-esque I suppose.
I disagree with your "importance" characterization, though. Miranda, Gideon, and Terry, (and other cases, of course, which would include cases like Katz and Massiah) to me, revolutionized how our criminal justice system could interact with the accused. They created constitutional norms to define police and prosecutorial practices and attempted to level the playing field as much as possible in our adversary system. They created prophylactic (or constitutionally-based prophylactic?) rules to ensure those rights.
While I think Blakely may continue that progression, in what will be seen as sentencing evolution, its _constitutional_ rule is not nearly as revolutionary. It certainly is "important" in that it affects a ton of suspects right now, but as Mr. Phelan notes above, Congress can/will eventually modify the system to conform. I just hope that Congress doesn't try to create a "gimmicky" workaround (as Professor Bibas put it) but instead seizes on the opportunity to think long and hard about the state of criminal law today. (Perhaps I'm just too optimistic!)

Posted by: District Clerk Battling Blakely | Jul 18, 2004 5:01:43 PM

They created prophylactic (or constitutionally-based prophylactic?) rules to ensure those rights.

Posted by: Robe de Soirée 2013 | Dec 12, 2012 10:49:01 PM

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