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October 10, 2007

Does the Blakely Five really care about sentencing procedures?

One of many reasons I thought Blakely was so important was because it suggested that five Justices really cared about procedural rights in modern sentencing schemes.  But, as Steve Sady highlights in this recent post, the Supreme Court continues to deny cert on many issues that seek to follow-up on Blakely's promise to champion "adversarial testing" over "judicial inquisition" at sentencing. 

Of course, the Booker remedy seriously undercut efforts to champion "adversarial testing" over "judicial inquisition" at sentencing.  Nevertheless, a range of follow-up Booker issues, ranging from the proper burden of proof at sentencing to acquitted conduct enhancements to judicial fact-finding to revoke supervised release, all present fresh and important opportunities for the Blakely Justices to champion again "longstanding tenets of common-law criminal jurisprudence."  Sadly, though, more than 3 years after Blakely, we are still awaiting the Court to fulfill Blakely's promised commitment to robust procedure justice at sentencing.

October 10, 2007 at 08:58 PM | Permalink


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Thank you Mr. Berman for bringing this issue up. The steam of the Blakely Five might have diminished with the turnover on the court. It has been shown that all conservatives do not think alike. It may very well be that the Blakely Five are more akin to the Jackson Five--splintered.

Who are the "conservatives" here anyway? Scalia sticks up for the right of a criminal defendant and Breyer laments the demise of his great "reform". When Nixon put Rehnquist on the Court he was then running a politcal agenda based on stomping on the Constitution. This was part and parcel of his Southern Strategy after Johnson had pushed the Civil Rights Acts. Nixon's pals in the Birch Society had been putting up "Impeach Earl Warren" billboards across America. This has a distinct historical thread (and appeal) to the Unreconstructed post civil war Democrats who think the Constitution is akin to the ACLU or bad toilet paper. The reluctance of State Court judges in Missouri (my home state) to even discuss Apprendi, Crawford or Strickland (or now Rompilla) much less adhere to Sixth Amendment jurisprudence, as iterated from the Supreme Court, is indicative of this historical trend.

Some of us forget that our tripartite government fails when the judiciary refuses to take on Congress. It is Congress and the "reformers" who gave us a Sentencing Commission (how Constitutional is that?) and Guidelines. Every hypocrite in Congress goes home in August and brags to the constitutents that they got tough on crime. Foley went home to Florida and bragged about kiddie porn penalties that he championed-- and then went out on dates with his male pages.

Maybe Roberts thinks more like O'Conner and Breyer and less like Scalia. More like Nixon. More like the Justices who beat down the 13th, 14th and 15th Amendments for a hundred years. The guys who thought up "separate but equal".

In the past, state courts would not acquiesce to the rulings of the Supreme Court and now the Circuits refuse to. It is not like the Court in Apprendi and Crawford told the country to proceed "with all deliberate speed".

One can not assume anything about the allegiances on the bench. Once cannot assume that Roberts or Alito will think like Scalia regarding the plain meaning of the Sixth Amendment or any other provision of the Constitution. This is the Court which just undid desegregation in public schools. "With all deliberate speed" is coming full circle to "separate but equal".

Regarding this Term. We need to step outside of Sixth Amendment and Apprendi-land for a moment for some perspective. The other issues will be more telling as to how far down the toilet civil liberties are going to be flushed. The habeas cases will be either taken on, or ducked. As will be speech cases and right of association cases. Wiretapping and computer invasions by the government are looming. I doubt that the Court will take up very few cases in any of these areas. I am a pessimist on the future of Apprendi and Crawford. I think that Rompilla is as far as the Court will go on effective assistance of counsel. We do not have any Madison in Congress preaching the gospel of separation of powers or the Bill of Rights and there is not a single Justice on the Court that stands even in the shadow the of Hugo Black, Douglas or Brennan. When Breyer is the "liberal", the nation is in trouble.
This is a "separate but equal" kind of Court.

Posted by: M. P. Bastian | Oct 13, 2007 8:16:04 AM

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