August 18, 2004

Blakely and the Loss of Intellectual Honesty in Some Circuits

For all my differences with many of the views of Justice Scalia, in Blakely he took the bull by the horns and decided according to law, instead of figuring political or practical consequences. After all, the dissent by Justice O'Connor is really a pathetic cry for not rocking the boat, rather than a reasoned legal argument.

I can understand the desire of appellate judges to let the Supreme Court go first, but why then issue these rulings saying Blakely does not apply to the federal sentencing guideline rather than wait. In my view, quite frankly, these are orders and opinions lacking in intellectual honesty. Maybe I am being too harsh, but that is the way I see it. It is difficult for me to imagine that a Judge can really believe the Supreme Court will not extend Blakely to the federal sentencing guidelines. If the impact were not as big, I'm certain we would have been seeing a lot more intellectual honesty. In this sense, the district courts who have struggled with this issue, and who must impose sentences with defendant in front of them, are the ones who have shown by and large the most intellectual honesty.

As for the First Circuit, at least they have not come down with any sort of opinion on the matter, which is a lot better than what some appellate courts have done.