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September 2, 2004

And my commentary begins...

The array of interesting (and lengthy) briefs filed in Booker and Fanfan have my mind racing with comments and questions, and I am very pleased to see others already sharing thoughtful commentary in the comments sections of the blog.

In an effort to organize my own thoughts, and perhaps the thoughts of others, I will try sub-dividing my commentary, at least for now, into three broad categories: (1) the general scope, meaning and impact of the Booker and Fanfan cases, (2) the applicability of Blakely to the federal sentencing guidelines, and (3) the severability of the federal sentencing guidelines if Blakely applies. (I have created new topical archives categories for each of these, and will start this morning with a brief post on each subject.)

Before getting into the nitty-gritty, I want first to generally praise the work of the amici whom have already spoken and also to highly encourage additional amicus efforts. Whatever one thinks of the substance of the points made in the amici briefs submitted so far, it is extremely valuable for the Supreme Court in Booker and Fanfan to hear a range of perspectives from a range of persons, institutions and branches.

Notably, in addition to the "official" executive branch view of Booker and Fanfan coming from the SG's office, yesterday we received views from the legislative branch in a brief from three US Senators, from the judicial branch in a brief from a group of former federal judges, and an agency view in a brief from the US Sentencing Commission. (As future commentary will highlight, I think it is much more appropriate to describe the USSC as an agency in general, despite its "official" placement in the Judicial Branch.)

At this moment, it is fun to speculate about what competing views we might hear in the next round of briefing: will other legislators or judges write amicus briefs in support of respondents? Given all the vocal complaints by both former and current judges about the federal sentencing system, might a group of judges forcefully express these views in an amicus brief? (Do the canons of judicial ethics even allow active judges to file an amicus brief in a case of this nature? Could and will the various official and unofficial judicial organizations file a brief?)

It also seems worth noting who has not yet filed a brief. To my knowledge, no state or group of states has filed a brief in support of the petitioners. In addition, and perhaps even more telling, I have heard no mention of a brief from any law enforcement agency or advocacy group representing police or prosecutors.

September 2, 2004 at 06:40 AM | Permalink


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