Wednesday, August 25, 2004
"Just the Facts, M'am"
Joe Friday's classic refrain is an appropriate title for this post in which I want to just highlight one development that I believe hasn't been given due attention in the post-Blakely environment. It seems to me that a cogent argument could be made that some determinations necessary to support enhancements are not factual determinations at all but legal ones. Perhaps this is the answer to Prof. Berman's astute observation about the decision in Paulus (E.D. Wisc.), which you can read on Sentencing Law & Policy. The judge in that case said his determination that the crime at issue in that case contributed to a public loss in confidence in government was not the type of determination covered by Blakely. Was he trying to say that this determination was not a determination of fact?