Posted by Orin Kerr:
Initial Reaction to Booker/Fanfan Majority Opinions:
I have now worked my way through [1]the majority opinions in
Booker/Fanfan; while I'm sure I'll have a better picture after I read
the rest of the opinions, in the interests of timeliness I thought a
quick and tentative post now might be of interest.
The basic picture is that the Apprendi Five held to apply Blakely to
the guidelines, but that Justice Ginsburg balked at the idea of
foisting all of Blakely's implications on Congress and either forcing
Congress to stick with it (highly unlikely) or make them rewrite the
law immediately. She was willing to take a softer approach: Blakely
applies, rendering the entire Federal Sentencing Guidelines advisory
and non-binding, with the caveat that the Feeney Amendment's de novo
review of upward departures is gone and replaced with a general
reasonableness appellate standard of review for sentencing decisions.
The four Blakely dissenters were willing to go along with this softer
view, at least in light of the Apprendi Five's decision to apply
Blakely to the federal guidelines. Thus Justice Breyer writes the
second half of Booker/Fanfan ruling that the Guidelines are now
advisory, not binding law, and that sentencing decisions are to be
reviewed by appellate courts under a reasonableness standard.
What to make of this? In the end, Justice Ginsburg's switch led to
the Justices imposing a soft revolution in sentencing law instead of
an agressive one. Blakely remains the law: the Court has adhered to
its view that all sentencing schemes must comply with the Apprendi
Five's preferred elements-analysis approach to the Sixth Amendment.
But the Justices won't impose on Congress the vision driving at least
some of the Apprendi Five (and embraced by many of Blakely's academic
supporters) that the Court can force the system to bolster defendant's
rights by simply tacking on a set of jury trial rights onto the
existing guidelines system. The Blakely revolution is here to stay,
but the Court isn't going to impose its substantive vision on an
unwilling Congress.
This is all just a very tentative reaction. More (and hopefully
better) analysis later. In the meantime, I'll enable comments.
References
1. http://www.supremecourtus.gov/opinions/04pdf/04-104.pdf
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