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August 15, 2004

Catching up on Blakely news

Happily back at my home office, I finally had a chance this morning to read some of this week's Blakely newspaper stories (collected here), and I wanted to highlight and comment on a few stories of note:

1. According to this article, DOJ is pushing the concept of announcing an alternative sentence treating the federal guidelines as advisory. Recall that this concept has now been adopted in the Sixth Circuit as well as the Fourth Circuit (details here), even though district judges see little sense in the approach (details here and here).

I guess I should not be surprised DOJ is behind the peculiar orders in the Fourth and Sixth Circuits, since the approach being adopted does not involve recommending that judges announce a third alternative sentence applying the guidelines without (arguably unconstitutional) enhancements. Interestingly, this article details that US District Judge Patrick Duffy in South Carolina has had the good sense to take the alternative sentencing approach to its logical extreme by announcing 3 sentences.

2. This thoughtful article highlights the challenges Blakely has created for Washington state prosecutors considering "exceptional sentences" against two Seattle teens accused of killing a school classmate. The article is interesting not only because it raises the issue of judges' authority to make Blakely-compliant procedural modifications without express legislative authority, but also because it highlights that, by influencing charging and plea negotiation decisions, Blakely will impact many more cases than basic sentencing statistics will ever reveal.

3. This fascinating article focuses on defendant Freddie Joe Booker's place in the spotlight now that his case will come before the Supreme Court to consider Blakely's impact on the federal guidelines. This article has a lot of rich details and insights (including the fact that Booker would likely not be released from federal prison until he is at least 70 years old even if he wins his Blakely claim). But this insightful passage at the end of the story about lurking retroactivity issues particularly caught my attention:

While Blakely and Booker will affect ongoing cases in district and appeals courts, it's not clear whether federal prisoners whose appeals have been exhausted will be able to retroactively re-open their sentences. That question is being pursued by students of Judy Olingy, clinical associate professor at the UW-Madison Law School's Remington Center. Five students who are part of the center's "Oxford Project," as it is informally known, spend 12 weeks working on the cases of federal prisoners at Oxford Federal Correctional Institution in Adams County. "I think there are some good, solid, strong arguments about why it should (apply retroactively)," Olingy said. But she said courts might deny those types of appeals simply because of the huge number of prisoners who would file them if allowed.

Finally, after reading Dahlia Lithwick's terrific NY Times op-ed "Activist, Schmactivist", I am trying to decide whether Blakely is an activist or "re-activist" decision. Perhaps the label "pro-activist" fits best, although the (obviously Yiddish) label "schmactivist" also sounds pretty good to me.

August 15, 2004 at 09:59 AM | Permalink


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