Institutional challenges for Blakely clean-up efforts
The state of federal sentencing in the post-Blakely world is, by all accounts, in some form of chaos, turmoil, crisis or anarchy. Fortunately, the latest word from this New York Times article and the folks at the SCOTUSBlog is that acting SG Paul Clement will be pushing the Supreme Court to consider both US v. Fanfan (background here) and US v. Booker (background here), and asking the High Court to act on an expedited basis.
Unfortunately, a cert. grant by the Supreme Court in these cases would not magically stop the madness. I have advocated for rapid Supreme Court action (see here and here), because I think such action is a necessary pre-cursor to more effective and sustained efforts by other institutions to reform federal sentencing procedures and practices. But, even on a expedited schedule, it is unlikely that we will have a decision from the Supreme Court before it’s time to go trick-or-treating. Moreover, as detailed here, in part because so many uncertainties and questions surround Blakely, there are reasons to fear that the Supreme Court is too divided on these issues to provide quick or clear guidance on these matters.
For these and perhaps other reasons, Professor Frank Bowman has not given up hope for a legislative fix ASAP. As previously discussed, Professor Bowman suggested, in a memo sent to the US Sentencing Commission three days after Blakely was decided, an ingenious Blakely-fix that could retain the basic elements of the existing federal sentencing guidelines. And over the past weekend, Professor Bowman put pen to paper again to produce another very thoughtful memo to the USSC in which he argues that “some legislative solution is a desirable response to Blakely.” In so doing, Professor Bowman says that “part of the reluctance to move forward with an immediate legislative response stems from a failure to map out the most likely consequences.”
Frank, in his own wonderfully intricate way, provides in the memo available below a map of likely consequences of different course of action. This mapping effort leads Frank to conclude that the prospects for effective and timely action by the Supreme Court are small, whereas prompt legislative action could bring some order — especially because, Frank argues, his short-term Blakely-fix could be applied to current cases without significant ex pot facto problems (see pp. 8-9).
Professor Bowman has asked me to share his latest memo along with an invitation to readers to send him responses about the merits of the arguments generally (and the memo’s ex post facto analysis in particular). Frank Bowman can be reached at frbowman@iupui.edu.