05 October 2004

Booker/Fanfan - the Experts Weigh In

Tommy Goldstein comments on Booker/Fanfan here and here.

Professor Douglas Berman discusses the oral argument here, here, here, and here (collecting commentary)

Mark Stancil, who clerked for WHR and now works for Baker Botts, publishes a newsletter on Supreme Court cases. You can subscribe to it by emailing him: mark [dot] stancil [ at ] bakerbotts [ dot ] com. Anyhow, here is what Mr. Stancil had to say about Booker and Fanfan.

In other news, the Court heard nearly two hours of oral argument today in United States v. Booker (04-104) and United States v. Fanfan (04-105), which ask whether Blakely v. Washington applies to the Federal Sentencing Guidelines, and, if so, whether the constitutionally offensive portions of Guidelines regime are severable. Not surprisingly, the five-Justice Blakely/Apprendi majority looked rock solid. Even voters in Palm Beach County read Blakely as effectively announcing the Guidelines' demise, and it seemed perfectly clear the majority plans to make good on the threat. By far the stickier wicket was whether some semblance of the Guidelines remained intact, either through jury factfinding or by making the Guidelines merely advisory. I didn't see a consensus forming around any one option here-Justices Scalia, Stevens, and Souter seemed to entertain the notion that the Guidelines could be kept in place if juries made the numerous necessary factual determinations (presumably through special verdict forms and/or separate sentencing proceedings). The Chief, O'Connor, and perhaps Kennedy seemed strongly against such a proposal, hinting that they did not plan to help clean up Apprendi's mess. I'm not at all sure where Ginsburg and Breyer will line up, and Justice Thomas was his usual vocal self. Bottom-line prediction: Guidelines with judicial factfinding are dead, and it's unlikely there will be five votes for imposing jury factfinding. In any event, it's probably safe to assume the Chief will rush these opinions out the door-perhaps as soon as November 8 or 9.

If you feel left out, don't. Email me and I'll link to your summary.

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