Thursday, August 12, 2004

Thursday Blakely Happenings

Some News

The ABA Justice Kennedy Commission Report is out. Get details, and the report, from Setencing Law and Policy here.

As a result of Blakely, some of the sentencing discussion is starting to focus on mandatory minimum sentences. Most of the commentary has been critical of mandatory minimums, but yesterday, Sandy Mattice, United States Attorney for the Eastern District of Tennessee, wrote an article defending mandatory minimums. By contrast, the ABA advocates what they call "smarter sentences."

Also from the ABA, a new article entitled, "New ABA poll shows strong public belief and trust in American jury system," is available here. That's good news, given that juries may be deciding a whole lot more in the near future.

There's a new blog on the block. The American Constitution Society has started to blog about Blakely. You can read Blog Editor Jeffrey Jamison's piece entitled, "Blakely v. Washington- Spending the Summer in a Tsunami," here.

Case Developments

The Second Circuit continues to punt Blakely issues. See US v. Marmorato, 2004 U.S. App. LEXIS 16521 (03-1659)(2d Cir., Aug. 10, 2004)("Further, in light of the Supreme Court's recent decision in Blakely v. Washington, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004), Marmorato has, within the last week, appealed his sentence on Sixth Amendment grounds. We do not here decide Marmorato's Blakely-based claim. We will address that challenge in a separate opinion or order to be issued at a future date.")

As it stands now, the Second Circuit's gamble to certify three questions to the Supreme Court has not paid off. Not only did the Court not accept the 2nd Circuit's offer, it appears as though the court will have to scramble and write an opinion if it wants to weigh in on the Blakely controversy.

Same in the district court of Wisconsin. See US v. Wright, 2004 U.S. Dist. LEXIS 15547 (D. Wis., Aug. 3, 2004)(“Until it declares expressly that defendants have a constitutional right to have their sentences enhanced only on the basis of facts found by a jury (or stipulated to in the course of a plea hearing), and declares the right retroactive, defendant has no right to any modification of his sentence.”)

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