Sunday, July 11, 2004

Blakely in Perspective

Here's a look at some of the major Blakely devlopments of the last few weeks.***

A Recap of the Last 2 to 3 Weeks

June 24 - The Supreme Court decided Blakely. Legal anarchy would soon follow.

June 29 - Just five days after Blakely, Judge Cassell deals the Sentencing Guidelines their first post-Blakely blow. The opinion is widely heralded at very well written.

June 24-29

- Sometime between June 24 and June 29, Chief Judge Young of Massachusetts, probably thinks to himself, "I told you so," as he laments his decision in US v. Green which declared the SG unconstitutional before it was cool to do so.

- Prosecutors are adjusting by: a) Requiring defendants to plead to the facts that give rise to enhancements, or b) prove the enhancements to the jury beyond a reasonable doubt.

- Sentencing options. From what we’ve seen so far, most judges appear to be selecting option two from Judge Cassell's Croxford opinion: use the parts of the guidelines to sentence the defendant that survive Blakely.

July 3 - Professors Bowman, Stith, and Stuntz offer some suggestions for fixing the guidelines.

July 6 - The first DOJ documents instructing AUSAs on responding to Blakely are leaked.

July 7 - More DOJ materials are leaked. The DOJ tells AUSAs to argue that Blakely does not invalidate the guidelines, but if that is unsuccessful, they should argue that the judge can either sentence within the statutory range or use the guidelines as a suggestion.

July 8 - Ken Lay's indictment is cleaned up to ensure Blakely compliance.

July 9

- An amended version of Judge Cassell's Croxford decision is released. The amended opinion contains "backup" sentences, some judicial insurance to cover a few possible permutations of constitutionality.

- The 7th Circuit speaks. Just about everybody (except for Judge Easterbrook) thinks that the Sentencing Guidelines are in trouble, including Judges Posner and Kanne. There appears to be a strong consensus that Blakely prohibits a judge to enhance a defendant's sentence unless the defendant agrees to waive his Blakely rights, agrees to the enhancements (or the underling facts) in the plea agreement or the enhancements are submitted to the jury. This opinion promises to spark a great deal of discussion.

July 11 - Professors King and Klein make available to the public a paper entitled Beyond Blakely which makes this recap of events look like it belongs on a law student's blog.

Things to Look Forward To:

July 13th at 10am, the Senate Judiciary Committee will have a
hearing on all of this stuff. I'll be there; I'll be the one in a dark suit.

*** I've left a number of minor to moderate developments out of this list.

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