Unconventional wisdom?

There is big news out of Boston, even before the Democratic Convention officially gets started (and I am not talking about the BoSox taking 2 of 3 from the Yanks). Today, US District Judge Nancy Gertner of the District of Massachusetts — who rivals Judge Weinstein in her penchant for scholarly (and copious) sentencing opinions — has weighed in on what Blakely means for federal sentencing. In the attached opinion in US v. Mueffleman, she states:

I conclude (1) that it is entirely appropriate for a lower trial court to consider Blakely issues and add her voice to the dialogue about the decision’s implications; (2) that Blakely unquestionably applies to the Federal Sentencing Guidelines; and (3) that the Guidelines are rendered unconstitutional in their entirety by that application.

While Blakely has gone a long way to make the sentencing system more fair, and to reinvigorate the role of juries in the process, it is inconceivable that the system now required by the decision is at all consistent with anything contemplated by the drafters of the Sentencing Reform Act or of the Guidelines. To literally engraft a system of jury trials involving fact-finding enhancements onto the Sentencing Guideline is to create a completely different regime than that comprehensive sentencing system envisioned by the legislation’s drafters or the drafters of the Guidelines. If such a system is required to give full effect to the Constitution’s jury trial guarantee then the entire sentencing system has to be recast. The constitutional sentencing pieces cannot be cobbled together by judges on a case by case basis.

More commentary on this case (available below) and other developments soon. In the meantime, I and other Shrek fans should try to avoid humming this variation of the children’s ditty: “Do you know the Mueffleman, the Mueffleman, the Mueffleman….?”
Download gertner_blakely_decision.pdf