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September 18, 2004

Questions and more questions

I want to say thanks again to the HLS Federalist Society for inviting me to participate in their event yesterday, at which I learned so much from my thoughtful co-panelists. Yet, as seems true for all my Blakely experiences, I came away from the Harvard discussion with a lot more questions than answers. Though a complete list of questions could go on and on, here are a few on the top of my mind right now:

1. Which Justice in the Blakely majority does DOJ really think won't want to apply Blakely to the federal guidelines? I heard in Boston yet again that DOJ is confident it will prevail in Booker and Fanfan. But, as I noted in this post, I cannot figure out which Justice they think will reverse course now. The forceful written opinions and votes of Justices Scalia, Stevens and Thomas in Apprendi and Ring (and Harris) and Blakely make it hard for me to believe they want to retreat. Perhaps the speculation is that Justices Ginsberg or Souter will have a change of heart, but their forceful opinions and votes in Jones and Ring and Harris make me doubt that they really want to exempt the federal system from Blakely. Indeed, as I suggested here, I think it is more likely Justices Breyer and Kennedy — both of whom changed sides to support the expansion of Apprendi in Ring — could join the Blakely five than that one of the five will defect now.

2. What famous case will Blakely be remembered with? I have previously mentioned here and here Blakely in the company of Gideon and Miranda, and others have mentioned non-criminal cases like Brown and Roe. But one HLS panelist interestingly asserted that Blakely will be remembered more like Lochner than like Brown. Of course, as I suggested at 37 Crim. L. Bull. 647-49 a few years ago, I really think the best parallel for the Apprendi/Blakely line is probably the capital sentencing decision in Furman. However, that analogy would have really fit if the High Court had used Blakely to narrow Apprendi in the way that in Gregg the Court narrowed Furman. Instead, of course, Blakely expanded Apprendi and so now we are in uncharted territory.

3. How much AUSA time has been spent filing 10,000+ superceding indictments, and how much more AUSA time will be spent re-doing all this work if DOJ prevails in Booker and Fanfan? I heard that perhaps around 100 superceding indictments have been filed in the District of Massachusetts alone this summer. Considering that there are 93 other federal districts, many much larger than D. Mass., it seems safe to guess that AUSAs have drafted and filed more than 10,000 Blakely-ized superceding indictments this summer. (That works out to over 150 every work day!). The irony, of course, is that if DOJ wins on either of its claims in Booker and Fanfan, all that work will need to be re-done. If Blakely is inapplicable to the federal guidelines OR if Blakely applies and the guidelines are not severable, all the Blakely-ization in indictments will be surplusage, and AUSAs will have 10,000+ indictments to redo again.

Finally, the biggest question on my mind now merits a separate post later. But I can preview it here: Do Justice Breyer and other Blakely dissenters think the Sixth Amendment right to counsel should not apply at sentencing?

September 18, 2004 at 04:00 PM | Permalink


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Your comments as always are insightful and nuanced. However, I am less concerned than you are about the additional work facing AUSAs if the DOJ prevails in Booker and Fanfan. I think the work on the 10,000-plus superseding indictments is a sunk cost, but it is not that likely to increase significantly in the unlikely event someone from the Blakely majority blinks. If Blakely is overturned, the sentencing facts included in the indictment are facts that the AUSAs were confident they could prove to a jury beyond a reasonable doubt. In the 95 percent of the cases that plead, no change will be required. If the sentencing facts are surplusage, the plea colloquy goes forward as before, and the defendant admits the actual elements, and may or may not admit the sentencing facts. Counsel can fight about them at sentencing under the old rules. (However, prosecutors, having sunk the effort, will be less likely to back off those facts during negotiations or at sentencing, I'm willing to bet.) In the cases that go to trial, defense counsel can file a motion to strike the sentencing facts alleged in the indictment as surplusage, and a redacted indictment can go to the jury without the AUSA having to take it back before the grand jury. That's a motion filed in five percent of the cases, and more likely than not an uncontested one. Surplusage is usually not that difficult to deal with, and this should be no different.
If the guidelines are struck in their entirety, a la Croxford, and the judges treat them as precatory, the same considerations will apply. The elements will remain the same, and the cases will be treated the same way. The more complex questions of which portions of the Sentencing Reform Act --as opposed to the guidelines -- are severable remain.
By the way, I'm a UNC law professor who until this summer was a federal prosecutor, and I am now writing about Blakely. In both capacities, I've found this blog to be one of the most useful works of legal scholarship I've ever encountered. My former colleagues in DOJ are tracking it as well. Keep up the good work.

Posted by: Richard Myers | Sep 20, 2004 10:28:16 AM

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