01 August 2004


Welcome to everyone who has come here from the Daily Press article. I hope you find this page interesting.

(1) To clarify my "tempest in a teapot" comment: Basically, I meant that in most cases the federal prosecutors will now indict every charge they intend to prove rather than indicting one charge (usually conspiracy) and then putting in evidence of all the other charges and aggravating factors during the sentencing hearing. Prior to the Blakely decision what you were charged with didn't really matter, a Defendant was sentenced to the worst crime the government alleged post conviction - even if the jury never even heard about that crime at trial. Perhaps the best explanation is from a trial court in Mass:
"[T]he Guidelines introduced a concept known as “real offense sentencing,” based on an offender’s “relevant conduct.” Pursuant to this approach -- and in keeping with the goal of curbing judicial discretion -- a judge must first determine the offender’s “relevant conduct” from materials formally placed before him primarily by the [prosecutor]; then the judge must impose a sentence based on the offender’s “real offense,” without regard to the actual offense of conviction."
. . .
"[T]he concept of “real offense” sentencing as practiced under the Guidelines not only affects where -- within the permissible range -- an offender ought be sentenced, it frequently adjusts that range upward considerably. No state system –- not one –- has adopted this approach. The result has been the routine sentencing of offenders on the basis of crimes with which they have never been charged, the commission of which they deny, without any evidence ever having been proffered against them. Even more bizarre, federal criminal sentences may today be based on conduct of which an offender has been formally acquitted."
So now prosecutors will allege all the offenses they intend to prove and plead them with specificity. A few things will be lost: Defendants will no longer be punished for testifying at their own trial by longer sentences if they are found guilty (because you couldn't indict him of that pre-trial). Then again, the prosecutor could always bring a separate, later charge of perjury if he wants to punish the Defendant.

In the short run the system will be disrupted as Defendants who were not indicted on all the charges the prosecution wants to punish them for or who were not indicted with specificity come to court and the judges have to decide how to deal with that. However, from the moment the prosecutors reacted to this decision its impact will be lessened greatly. Having met a few federal prosecutors, I am convinced that they reacted quickly and have already taken the necessary steps.

[addendum] Via SL&P an article from The Birmingham News which backs my assertion.

(2) My major posts on Blakely are:

The Massachusetts Ruling that Federal Sentencing Guidelines are Unconstitutional (actually pre-Blakely but it explains the guidelines situation well)

Blakely and Federal Sentencing Feeneyizing the Upward Departures

Virginia-izing the Federal Sentencing Guidelines

The Trickle Before the Torrent U.S. v. Croxford

The Trickle Before the Torrent II

Blakely Waiver

DOJ Blakely Memo

Guidelines out in Texas

Virginia and Blakely

Blakely Trends

Blakely and Trial Courts

Wilkins Recusal?

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