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October 10, 2004

Late-night wrap up

Day two of the Stanford Roundtable conference provided still more wonderful insights, with great panels covering Blakely in the states, the impact on plea bargaining and other backward-looking and forward-looking litigation issues, and then a rousing finale with "idealistic reflections on the future of sentencing reform." As is now the norm in these dialogues, there was a lot of (often pessimistic) forecasting of what Blakely will come to mean, especially as legislatures react to the new constitutional rights and rules that Blakely has ushered in.

I have learned so much more about Blakely from the dialogues at this amazing Stanford event (beautifully put together by Professor Bob Weisberg). I gained many new and important insights, and today's panels especially highlighted the risks and challenges that the Blakely decision poses for the future of modern sentencing reform efforts.

But I continue to believe that Blakely stands for the fundamental — and fundamentally sound — basic principle that, in our constitutional system with its commitment to adversarial justice and jury rights, any factual finding (but not any legal conclusion) which concerns any criminal offenses (but not the offender) that by law defines punishment levels must be proven to a jury beyond a reasonable doubt (or admitted by the defendant). In other words, I believe Blakely articulates the simple and sound principle that any factual findings concerning any criminal offense which by law defines punishment levels is exactly what is a "Crime" in Article III, Section 2 of the Constitution (as well as the Sixth Amendment) to which a jury right attaches.

October 10, 2004 at 02:46 AM | Permalink


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Professor Berman:

Thanks for your excellent work at "Sentencing Law and Policy." I am a federal defense attorney from the Rio Grande Valley in south Texas, a 5th Cir. jurisdiction(and also a major drug corridor), and have had a federal drug defense practice for twenty years.
I access your blog almost on a daily basis for the latest on Blakely because the Blakely issues impact my practice most dramatically, and started to feel guilty about reading and learning from your fine work and not at least thanking you for all your commendable effort and dedication.
One of our local district judges (McAllen) has been accepting "Blakely waivers"-type plea agreements while our other judge (Ricardo Hinojosa), who was recently named as Chair of the U.S.Sentencing Commission, has been more cautious in taking pleas, and has delayed sentencing in cases that have or appear to have, Blakely issues.
I have been spreading the word of late about your blog, but I'm not sure if anyone else from my area has taken advantage of this fine resource. I'll email you in the near future about some of the "quaint" peculiarities of the southern 5th Cir.as experienced by practitioners in areas such as relevant conduct, role in the offense, base offense level based on amount of drugs, etc.
Thanks! again, yours truly,

Posted by: Arnulfo Guerra, Jr. | Oct 13, 2004 9:03:03 AM

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In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB