Friday, September 17, 2004

Blakely News

Legislative or Judicial? That (may be) the question

Findlaw columnist Vikram Amar has written an article entitled, "Are the U.S. Sentencing Guidelines Judicial or Legislative? And Will the Answer Determine Whether They Survive Supreme Court Review?" As all Blakely followers know, this is a very important question to which the answer may decide the fate of the federal guidelines. Although it is possible for the Court to say that the guidelines are purely judicial and still strike them down, that seems unlikely. If the guidelines were to fall as a result of Blakely, it appears most likely that the Court would recognize their judicial origins but acknowledge their legislative force and tacit mandate. As I've stated previously, it's questions like this that make me think that the Booker/Fanfan case will turn on old-fashioned Mistretta grounds.

Minnesota News

The Pioneer Press is running a short story on Blakely in which the state's sentencing commission recommends that defendants could waive jury trials to determine sentences that exceed state guidelines.


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