Implementing Blakely

As detailed here, the second special Federal Sentencing Reporter issue on Blakely went off to press this week. And hard copies of the first FSR Blakely issue, detailed here, should be arriving in subscribers' mailboxes any day.

So that must mean it is now time to start posting drafts of pieces which will appear in the third special FSR Blakely issue (cover date December 2004). For your weekend reading pleasure, I today provide two such pieces (and more will likely appear in the coming weeks). First, is an article by Professor Jenia Iontcheva Turner of the SMU Dedman School of Law elegantly titled "Implementing Blakely." This article thoughtfully and comprehensively addresses "what procedures would be needed in a system that both implements Blakely and preserves sentencing guidelines." It also provocatively suggests that:

To give content to the notion of the jury a democratic institution, innovative legislatures could consider going beyond Blakely.... Juries could be entrusted not only with the duty of finding the facts, but also with a greater share of the moral and legal decision-making that underlies sentencing.

Download implementing_blakely.doc

Writing in a somewhat similar vein, federal sentencing practitioner James E. Felman — who was co-chairman of the Practitioners' Advisory Group to the Sentencing Commission and is now co-chair of the ABA Criminal Justice Section's Corrections and Sentencing Committee and a member of the Constitution Project's blue-ribbon Sentencing Initiative noted here — has produced this article addressing "possible legislative responses" if the "Supreme Court in Booker and Fanfan holds that the guideline maximum is the relevant statutory maximum for Sixth Amendment purposes." (This is a tweaked version of the thoughtful memo he sent to the US Sentencing Commission previously posted here.)

In this piece, Felman argues that a version of "codified guidelines" would, among the reasonably available options, "best accomplishes the policy choices underlying the Sentencing Reform Act:"
Download felman_blakely_article.wpd