23 June 2004

Judge Finds Federal Sentencing Requirements Unconstitutional

A federal district court judge has found the federal sentencing requirements unconstitutional. I first saw an article about this yesterday on Southern Appeal and a few of you were kind enough to point it out to me.

I printed out the 170+ pages and read the first 50 or so last night. I started to underline passages so that I could include them here but I soon found I was underlining about half of every page. It is well written. The first section is a burning indictment of the sentencing requirements and how they place power so totally in the hands of prosecution that no one can go to trial. He even notes that those who are keeping track of the number of trials in the federal system are so desperate to make it look as though trials actually occur that they are counting pre-trial motion hearings and post trial sentencing hearings (wherein someone testifies) as "trials." Then he goes on about how the shift of judge from adjudicators to clerks for the prosecutor has effected the judges (especially post Feeney). I glanced at the first paragraph of the next section and it finds the sentencing requirements unconstitutional as they contravene Apprendi et al. It's a well thought out well put together argument (so far).

On top of all that, it is a primer for how the federal courts currently operate. Anyone who is starting to practice in federal courts should be required to read the first section because it explains in detail exactly how the system works in practical terms and straight forward language.

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