The Empire Strikes Back

After another week of quirky work by the federal circuit courts, as of this writing there are now more circuits which are requiring its district courts to apply the federal guidelines as written (the Second, Fourth and Fifth), than circuits which are requiring modifications in light of Blakely's constitutional requirements for sentencing enhancement (the Seventh and Ninth). Of course, there were periods of time in which the federal guidelines were unconstitutional in the Sixth and Eighth Circuits, but en banc efforts of these courts have clouded the applicable rules in these jurisdictions.

This new circuit reality is stunning, in part because the vast majority of district court judges to issue written sentencing opinions since Blakely have concluded that they can no longer constitutionally apply the federal guidelines as written. It also is disconcerting because, as Ron noted in his discussion of the Second Circuit's Mincey ruling (details here), it would be very valuable for the Supreme Court and Congress and the Sentencing Commission to be able to draw on the insights and experiences that emerge when lower court judges seriously struggle with developing a constitutionally viable and sound sentencing system in the wake of Blakely.

I know my own understanding of both Blakely and post-Blakely sentencing realities has been critically informed and enhanced by district court rulings like Judge Goodwin's work in Johnson and Shamblin, and Judge Enslen's work in Hakley, and Judge Holmes' work in O'Daniel, and Judge Lynch's work in Emmenegger, and Judge Battaillon's work in Swan and Terrell, and Judge Singal's work in Zompa, and Judge Gertner's work in Meuffleman, and Judge Presnell's work in King, and Judge Rakoff's work in Marrero, and Judge McMahon's work in Einstman, and Judge Kaplan's work in Roberts, and Judge Weinstein's work in Khan, and Judge Stewart's work in Montgomery, and of course Judge Cassell's work in Croxford. And this long list of insightful and informative district court decisions necessarily leaves out all the other important and thoughtful work done by federal district judges (more details here and here and complete reports at this link).

Sadly, the list of thoughtful, insightful and informative post-Blakely circuit court rulings is much, much shorter.