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August 23, 2004

Sorry, Washington, no rehearing in Blakely

As Lyle Denniston reports here over at the SCOTUS Blog, the Supreme Court today denied Washington's petition to rehear its ruling in Blakely. Of course, as Lyle notes, though the Court has now officially refused to "rehear" Blakely, it will certainly have occasion to "reconsider" the scope and meaning of the Blakely decision through US v. Booker and US v. Fanfan on the first day of the new term, October 4.

The denial of this rehearing petition, though not unexpected, is still in my view important. Though I know better than to read too much into unexplained refusals to hear particular cases, the denial of Washington's petition suggests to me that there are not five votes on the Supreme Court in support of radically rethinking the entire Apprendi/Blakely line of cases — even though the rehearing petition (available here) made a pretty compelling case for such a radical rethinking.

So, with Washington officially shut out of the SCOTUS Blakely action for now, I wonder if Washington or other states plan to file amicus briefs in Booker and Fanfan. Obviously, the fates of state sentencing systems are not directly at issue in these federal sentencing cases. But Booker and Fanfan will have to — or at least should— provide some fuller account of what the heck Blakely really means, and thus I suspect at least a few states might want to share their views as amici. Of course, if they want to speak on these issue, states (and others) need to move fast. Briefs in support of petitioners (DOJ) and briefs not in support of either party are due September 1. Briefs in support of respondents (Booker and Fanfan) are due September 21.

August 23, 2004 at 01:02 PM | Permalink


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