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November 30, 2004

Post-Blakely data on the state of federal sentencing

Though we did not get an opinion form the Supreme Court, I will still consider today a huge day because the US Sentencing Commission has now posted, here on its Booker/Fanfan page, some fascinating preliminary data about post-Blakely case processing in the federal system, as well as a memo with a review of lower federal court opinions addressing Blakely.

The sentencing data, comprising three pretty charts and described as "Preliminary Comparison of Case Submissions July and August 2003 and 2004," can be accessed here; the memo, which is more of a database than a substantive memo, can be accessed here

I am looking forward to consuming and commenting on these documents later this evening.  For now I will just say huzzah and thanks to the USSC and its staff for becoming much more public and transparent on these issues at a very important time.

November 30, 2004 at 05:25 PM | Permalink


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Litigants have missed the true point of Blakely v. Washington because they have approached the decision as one describing “right of the defendant”. When properly analyzed, Blakely is actually reaffirming the duty of American tribunals of justice that they will only inflict guilt upon an accused to the standard of proof beyond a reasonable doubt of every essential element to the crime to the unanimous belief of a jury.

Under Blakely, the characterization of facts that increase a defendant’s criminal penalty is as “the functional equivalent of elements.” In R.L.C. v. United States, 503 U.S. 291, 299 [1992], the Supreme court ruled that the United States Sentencing Guidelines were de facto statutes because the ,mandate to use the Guidelines was both mandatory and legislative. This being so, in the truest sense, the elements added thus far in order to impose sentence enhancements constitute “other crimes” than the crime under indictment. When those facts are recognized as essential elements, different consequences attach to the treatment of those facts than apply to “mere evidence”. Richardson v. United States, 526 U.S. 813, 817 [1999]. The most important difference is the standard of belief and the identity of the fact finder.

“A trial judge is prohibited from entering a judgment of conviction
or directing the jury to come forward with such a verdict…regardless
of how overwhelming the evidence may point in that direction.”

United States v. Martin Linen Supply Co., 430 U.S 564, 572-73 [1977]

The error in appellate reviews has been to treat this combination of legal factors as an assertion of some right flowing from defendant when, in fact, proof of elements to the jury is a duty of the tribunal itself in order for it to claim jurisdiction. It is the seminal pledge of the judiciary itself to all citizens.
In re Matter of Winship, 398 U.S. 358, 364 [1970]. The standard of proof is not the defendants’ either to make or to acquiesce!! It is the burden placed on the Government without which no conviction can be constitutionally or jurisdictionally obtained.
As a result of being a property of the Tribunal itself, “the prosecutions’ burden of proof to the jury of every element beyond a reasonable doubt is not lifted by a defendant’s tactical decision not to contest an element of the offense.” Estelle v. McGuire, 502 U.S. 62, 72 [1991]. A failure of the Tribunal to function as a Court of American Justice is a structural defect of the highest order. The Winship doctrine, which “establish[ed] so fundamental a substantive constitutional standard, must also require that the fact finder will rationally apply that standard to the facts in evidence.” Jackson v. Virginia, 443 U.S.307, 317 [1979]. And the denial of the right to a jury verdict of guilt beyond a reasonable doubt is structural error not subject to harmless error review.” Sullivan v. Louisiana 508 U.S. 275, 282-83 [1993]
The whole heritage of American Justice is involved when a reviewing court applies harmless error or plain error standard of review, or refuses to redress Blakely error on collateral review.

Dr Rodrick A. Campbell
[email protected]

Posted by: Dr Rodrick Campbell PhD (chemistry) | Nov 30, 2004 7:09:38 PM

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