Tuesday, August 24, 2004

Two New Blakely Essays

Two new Blakely essays are forthcoming in The Columbia Journal of Law and Social Problems. My intimate connections with the Journal, and its staff, have allowed me to make available on this blog drafts of the essays.

The first essay, written by third-year Columbia law student, Phil Fortino, is entitled “A Post-Blakely Era or Post-Blakely Error?” Phil's essay argues that the Guidelines are constitutional. Unlike the Washington statute at issue in Blakely (and in Apprendi, etc.), the Guidelines do not make the sentencing enhancements contingent on judicial fact-finding. Nor do they specify a burden of proof. Judicial fact-finding and the preponderance standard are products of pre-Guidelines case law. Furthermore, pre-Blakely cases implicitly recognize these facts, by ordering changes in procedure but leaving the Guidelines untouched in cases where traditional application of the Guidelines violated Apprendi. Phil claims this history was over looked because no party in the decision-making process had interests that coincided with the correct result. You can access a current draft of the essay here.

The second essay, is entitled “Blakely’s Potential,” and was written by the owner of this blog. My essay argues that Blakely has presented a rare opportunity to critically evaluate and reform sentencing policy. With some guidance from the Court, it may be possible to rewrite the entire federal code, or at a minimum, substantially revise sentencing policy. The essay also argues that the Sentencing Commission should be a target of reform. You can access a current draft of the essay here.

Both authors welcome any comments. Mr. Fortino can be reached here, and I can be reached here.

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