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July 17, 2004

The week that was

Though I have an affinity for hypebole, I do not think it is an overstatement to call the work week just ended the wildest and wackiest week ever in the federal criminal justice system. We had at least a dozen major court rulings, not to mention a Senate hearing and then Martha. Whew. Though later I may have some posts with deeper reflections, for now I want to just recommend weekend reading:

First, I highly recommend Judge Colleen McMahon's thoughtful decision in US v. Einstman, No. 04 Cr. 97 (SDNY July 14, 2004). Judge McMahon, expressly "adopting the reasoning" set forth by Judge Paul Cassell in US v. Croxford, does not break any radical new ground in her decision to find the guidelines unconstitutional and also not severable. But she beautifully enhances the discussion of the major issues, while also becoming yet another judge to state on the record that she wishes "that the Supreme Court will address this issue immediately ... and in an expedited manner."

Second, as the comments here highlight, Judge Weinstein's decision in US v. Khan, No. 02-CR-1242 (EDNY July 12, 2004) sets forth the "history of juries and judges cooperating in sentencing in the United States," and does so in a way that might stimulate rethinking of the very rights that have engendered this Blakely revolution.

Finally, providing perhaps the tightest review of the week that was, in US. v. Thomson, 2:03-00187-02 (SDWV July 15, 2004), the esteemed Judge Joe Goodwin (of Shamblin fame) ultimately concluded that he had to stop the madness, at least in his courtroom. Reviewing all the major and divergent rulings of the past two weeks, Judge Joe Goodwin concludes as follows:

The court FINDS that consistent application of the law is of paramount importance in sentencing matters. Therefore, in the interests of justice, the court will move all sentencing hearings to a date after October 15, 2004.

July 17, 2004 at 01:45 AM | Permalink


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I'm trying to get a read on the application of Blakely to Pennsylvania's guidelines. On its website, the PA Sentencing Commission suggests that since PA is an "indeterminate" state, Blakely doesn't apply. In PA, a sentence must include a minimum term (service of minimum is required for parole eligibility) and a maximum. The Guidelines only govern the minimum portion, i.e., if the Standard Range of the G'lines were 12-18 months's, a court could impose a sentence of 15 months min with a max that could be as high as the statutory max. However, the min could still be enhanced (aggravated range or beyond) by virtue of judge's factual findings beyond the guilty verdict, thus severely impacting parole eligibility. The Commission suggests that since "sentence" in PA is really the max portion of the sentence, there is no Blakely problem. Any thoughts? (I am "conflict counsel" in PA - a species of public defender).

Posted by: Joe Cosgrove | Jul 17, 2004 2:38:57 AM

In Feb my father was sentenced by Federal Judge Dowd, a wonderful judge. Who by the way did more for us than our lawyer, filed motions on our behalf that our lawyer didnt!!!!! Here were his comments

Dowd said he wanted to give Daniels a lesser sentence, but federal law makes the minimum sentence for the offense 51 months.

"I guess they think we're idiots when it comes to our discretion," the judge said of Congress passing certain laws setting minimum sentences.

Daniels told the judge he is not sure his daughter will be alive when he gets out of prison.

"This comes close to a death sentence," Daniels said.

But Dowd had no choice and sentenced Daniels to 51 months. The judge will allow Daniels to turn himself in on March 29. That comes from the Willoughy News-Hearld, Ohio Feb 11, 2004.

I am just an active daughter trying to get my fathers sentence reduced to an acceptable amount so he can come home to take care of his dying daughter. My sister has Wolf-Horshorn Disease. http://ibis-birthdefects.org/start/wolfhirs.htm and they give her 1 to 2 yrs more to live.

Thanks for letting me vent
Melissa Daniels-Gelsinger

Posted by: Melissa Daniels | Jul 17, 2004 7:45:23 AM

I don't know the facts behind Melissa's father's case and consider the details not relevant to the comment I am about to make. In all of the analyses and predictions and pronouncements about Blakely's impact, I beseech the powerful decision-makers and their esteemed advisors to remember something. The sentencing policies, statutes and underlying theories are applied to real people, not theoritical academic ones. The Constitution and Bill of Rights directly used this fact as a core informing principle, for good reason learned through prior unfortunate experience under systems otherwise informed. Decide well on our behalf.

Posted by: Jeannie | Jul 17, 2004 12:26:05 PM

This Court's decision to postpone all sentencings until October -- at least 90 days from now -- may raise concerns about the defendant's right to a "speedy sentencing." As a practical matter, many courts that have not officially postponed all sentencings seem to be putting them off more or less indefinitely, raising the same concerns.

As the Second Circuit has held:

The Speedy Trial Act provides that a defendant shall be afforded a trial within seventy days of indictment, first appearance, or after remand from an appeal. 18 U.S.C. § 3161(c)(1) & (e). The Act makes no mention of sentencing, and creates no right to a "speedy sentencing". Courts, however, acknowledge that the Sixth Amendment guarantee to a speedy trial applies to sentencing.

United States v. Bryce, 287 F.3d 249, 256 (2d Cir. 2002). (Note the irony that the Supreme Court's effort to protect defendants' Sixth Amendment right to a jury trial may be impairing those same defendants' Sixth Amendment right to a speedy disposition...)

Has anyone raised a "speedy sentencing" objection to a Blakely continuance? It seems possible that there are many defendants for whom the present confusion could be beneficial, and for whom it makes tactical sense to move forward quickly instead of waiting for definitive answers on the meaning of Blakely. In addition, some defendants who are detained pending sentencing are living in worse circumstances than they would be if they had been placed in a permanent BOP assignment.

Any experience with this?

Posted by: Sarah Merriam | Jul 20, 2004 9:45:47 AM

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Posted by: laptop battery | Oct 14, 2008 5:20:26 AM

In PA, a sentence must include a minimum term (service of minimum is required for parole eligibility) and a maximum.

Posted by: Robe de Soirée 2013 | Dec 12, 2012 10:47:15 PM

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