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April 8, 2005

Interesting Blakely development in Michigan

Soon after Blakely was decided last summer, the Michigan Supreme Court in People v Claypool, 470 Mich. 715 (2004) (discussed here) dropped a footnote asserting that Michigan's guideline scheme operates in a manner that avoids Blakely problems.  That assertion came without full briefing of the issue and, as detailed in this post, is not perfectly obvious to everyone.

Today I received news that last week the Michigan Supreme Court entered the following order in the case of People v Drohan:

On order of the Court, the application for leave to appeal the October 12, 2004 judgment of the Court of Appeals is considered, and it is GRANTED, limited to the issue whether Blakely v Washington, 124 S Ct 2531; 159 L Ed 2d 403 (2004), and United States v Booker, 125 S Ct 738; 160 L Ed 2d 621 (2005), apply to Michigan's sentencing scheme. The Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan are invited to file briefs amicus curiae.  Other persons or groups interested in the determination of the question presented in this case may move the Court for permission to file briefs amicus curiae.

The lower court opinion in Drohan is at People v Drohan, 264 Mich. App. 77, 689 N.W.2d 750 (Mich. App. 2004).  In that opinion, Michigan's intermediate appellate court dropped this interesting footnote:

We further note defendant's allegation in a supplemental brief that Blakely v. Washington, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), applies to the sentencing in this case.  We disagree with this contention. Indeed, the Michigan Supreme Court noted in People v. Claypool, 470 Mich. 715, 730 n. 14, 684 N.W.2d 278 (2004), that Blakely does not affect Michigan's sentencing system.  We disagree with defendant that this statement from Claypool is not binding on us.  Nevertheless, given the large number of recent criminal appeals in which this issue has been raised, we request that the Supreme Court issue its opinion concerning whether footnote fourteen in Claypool constitutes binding precedent.

April 8, 2005 at 10:17 AM | Permalink


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The collection of data to recport on judges sentences is clearly designed to chill judicial discretion. No such scrutiny has been placed on prosecutorial discretion. Too often, as in Delaware, the types of cases in federal court are not worthy of the high penalties suggested in the sentencing guidelines. It is too easy to cite statistics and report on sensational charges without review of the individual facts that the judge heard. To date nothing has been done to ease the tremendous unfairness of the crack-cocaine desparity. Rather, the approach to criminal justice, in general, is to always call for increased penalties for defendants who are poor and have no one to fight for reasonable penalties in a system that believes improperly that incarceration is a quick fix.

Posted by: Penny Marshall, Fed. Def. | Apr 8, 2005 12:59:44 PM

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