Monday, October 04, 2004

Happy New Year's

The first Monday in October has arrived. At 1:00 pm EDT, the celebration begins with the combined arguments in Booker and Fanfan. A correspondent has directed me to an article in the Christian Science Monitor (here) that provides a very nice set up, describing how we got here, where things stand, and what's at stake. It is entirely appropriate that the article end with the opinion of Doug Berman, law professor at Ohio State and blog-tender of Sentencing Law & Policy, who has been absolutely the best resource for all things Blakely, state and federal, since the Big Bang on June 24th. (His blog has been cited in five decisions, including U.S. v. Ameline, the Ninth Circuit case doing in the Guidelines , U.S. v. Croxford (D. UT.), Judge Cassell's path-breaking Blakely decision, and U.S. v. Johnson (S.D.W.V.), in which Judge Goodwin rejected the Fourth Circuit's invitation to impose alternative sentences because, he said, "Hypothetical sentencing is an abdication of my duty to decide legal issues." (Emphasis in the original).) Professor Berman got a ticket to the arguments today, and no one deserves a ticket more than he. I would not be surprised to see a citation to SL&P in the Booker and Fanfan opinions.

Sadly, it would appear that a recording of the arguments today is not going to be released immediately.

Whatever the result in Booker and Fanfan, I think there is a great possibility that there will be more questions than answers for state sentencing after the results are in. Recall that Blakely was a state case that federal courts immediately adapted, adopted, and applied to federal sentencing. In the federal cases that have followed Blakely, there has been a great deal of reading between the lines and reliance on even the Blakely dissents. (I cannot think of a dissenting opinion that has carried more weight than Justice O'Connor's in Blakely, in which she says, "If anything, the structural differences [between the Washington and federal sentencing schemes]and that do exist make the Federal Guidelines more vulnerable to attack." I also cannot think of a dissenting opinion that has done more damage to its own position. And even more important for state sentencing is Justice O'Connor's dissenting comment, "And, despite the fact that we hold in Schriro v. Summerlin, post, p. ___, that Ring (and a fortiori Apprendi) does not apply retroactively on habeas review, all criminal sentences imposed under the federal and state guidelines since Apprendi was decided in 2000 arguably remain open to collateral attack.")

Now we are going to get two decisions applicable on their face only to the Guidelines, and the shoe will be on the other foot. It will be up to state courts and, finally, legislatures, to divine the implications of purely federal decisions for state sentencing.

More anon.

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