There is no way I can keep up with the frantic pace of all the Blakely happenings and so I have left that generally to SL&P and Blakely Blog. Still, I have been watching and here are the positions as I see them.
Blakely Renders Only Upward Departures Unconstitutional
Sever the Unconstitutional Portion: Blakely renders factors neither stipulated to nor found by a jury which will increase a sentence unconstitutional. Nevertheless, the guidelines remain constitutional. Therefore, the guidelines must be applied with those upward departures shorn away.
[comment] This seems to me to be the narrowest and most accurate reading of Blakely. Sure, in the short run it causes some problems as people who were not properly indicted get lesser sentences. But when the prosecutors very quickly adapt the situation will settle back down to pretty much where it was before with but few things really changed (like punishing people for testifying at their own trial).
Blakely Renders the Guidelines Unconstitutional as a Whole
Empanel a Jury: Blakely renders factors neither stipulated to nor found by a jury which will increase a sentence unconstitutional. Since this part of the guidelines cannot be severed the judge should impanel a sentencing jury or set up a bifurcated trial
[comment] This strikes me as an eminently viable solution. The only problem is that I haven't seen anyone explain where the courts are authorized to implement it.
Discretionary Guidelines: Blakely renders factors neither stipulated to nor found by a jury which will increase a sentence unconstitutional. Since this part of the guidelines cannot be severed the guidelines as a whole are out. They should still be worked up and considered but they are no longer determinative, merely advisory.
[comment] If this is viewed as going back to entirely indeterminate sentencing it seems valid if the unseverability is correct. However, it strikes me as going a step too far. I've seen no valid reason for not severing the offending portions of the guidelines and therefore throwing them out entirely. Both of the solutions above work far better.
Schizophrenia: Blakely renders factors neither stipulated to nor found by a jury which will increase a sentence unconstitutional. Therefore, whenever the guidelines would be moved upward by one of these factors they are unconstitutional and the guidelines are entirely out and sentencing is indeterminate using the guidelines as a suggestion. However, when there is no Bakely issue the guidelines magically transform back to constitutionality and are their same old determinative selves.
[comment] An obviously unsupportable position. A statute, as viewed through a constitutional lens, is not a light switch to be turned on and off so that it is applied only when the application would be constitutional. If the guidelines are in toto unconstitutional and therefore dimissed they are in toto unconstitutional and therefore and therefore dismissed. A person who is effected in an unconstitutional manner may be required in order to challenge the guidelines; nevertheless, that does not mean they survive once declared unconstitutional.
The government's attempt to preserve its power at all costs by advocating this position is understandable, though not laudable. The adoption of this position by a number of judges has just been bewildering.
Head in the Sand: The Supreme Court expressly passed no judgement on the federal guidelines and therefore they remain constitutional.
[comment] Gotta say, I was really, really surprised that an appellate court would adopt this position. The 5th Circuit did; I cannot explain it.
As an aside, I am reading of lowered sentences in blawgs and news articles but I am also hearing of greater punishments from certain Defense oriented mail lists. Those involved in federal work are still somewhat in chaos from this.
You'll also remember that two posts back I asserted that federal criminal sentencing does not "pierce the consciousness" of people not involved in the federal system. I can pretty much confirm that none of my clients have a clue about what's currently going on in the federal system. Clients are on it the instant something big happens in the Commonwealth's courts or the Legislature and rumors abound (every year we Defense attorneys spend a fair bit of time explaining to clients that certain bills didn't pass the Legislature and yes, they will still have to serve 85% of their sentences). There's been nary a peep about Blakely and I would have expected some wild rumor by now. Heck, even most of the attorneys do not know about Blakely. Since few have a significant federal practice and Blakely has no application in Virginia they just don't have a reason to pay attention to the case.
For more specifics on day-to-day Blakely go over to SL&P or Blakely Blog.
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