Various staff members of the U.S. Sentencing Commission now believe that it is most likely the Supreme Court will uphold the guidelines. Nevertheless, they are planning for legislative options in the event that the guidelines are struck down. Part of that planning will be based on a comprehensive and empirically rigorous 15-Year Review of the current guideline system. The review, prepared by the staff and now being considered for possible adoption by the commissioners, tries to identify the strong and weak points of the guidelines in carrying out the purposes of the 1984 Sentencing Reform Act.Does this mean that these various staff members believe that the Court will not apply Blakely at all to the federal sentencing guidelines? Or does it mean they believe the Court will apply it but that they think the Court will come down the side of severability? What is the basis for believing the Court would not extend Blakely to the guidelines? I suspect that this is all wishful thinking, for it is hard for me to conceive that the Blakely majority would now backtrack. There are no principled grounds to do so, only pragmatic ones, and Blakely was anything but pragmatic. You just can't explain it away.
August 19, 2004
USSC Staff Members Think Court Will Uphold Guidelines ... (and they're pooling their money to buy the Brooklyn Bridge)
Oops! Apparently I don't know what I'm talking about when I say I cannot imagine the Supreme Court not applying Blakely to the federal sentencing guidelines. Check out this post at Sentencing Law and Policy, where it is reported that