They can’t all have Blakely claims, can they?

As detailed in this New York Times article, the number of persons under the control of the criminal justice has reached a new high and is quickly approaching 7,000,000. (The Times article calls them “Americans,” but I doubt they are all US citizens.)

As this press release details, the latest data indicate that, as of June 30, 2003, there are 2,078,570 persons in federal and state prisons or jails. And, as of December 31, 2003, 4,073,987 adults were on probation and an additional 774,588 on parole. With that large a number, there must still be a few who don’t (yet) know about Blakely.

One prisoner who clearly does know about Blakely is Jimmy Bijou, whose counsel has filed a cert. petition which can be accessed here from the Blakely Blog. The petition effectively highlights one of the many compelling situations in which the old guideline rules look so very hinky after Blakely‘s embrace of th Sixth Amendment: according to the brief, “the same judge who excluded tainted drug evidence from the jury turned around at sentencing and used the same evidence to double the applicable sentencing range.” Problematically, this cert. petition does not present the severability question, though it reminds me that SCOTUS might think about taking some cases in addition to those the SG is pushing.