Insightful defense perspectives

Every time I read a new brief or commentary relating to Blakely, I get new insights about our mixed-up sentencing world and also about the sentencing world we might want to work to re-build. Today I reviewed two documents from the defense perspective — an open letter to the NACDL from Larry Fassler available here courtesy of the Blakely Blog and a brief recently filed in the Fifth Circuit available below — both of which had my Blakely brain humming again.

Larry Fassler’s lengthy and insightful letter to the NACDL, in addition to having some amusing rants which reflect the obvious frustrations felt by defense representatives working in the federal system, also included a number of sober and sobering insights. Though the whole letter is worthy of a close read, the following paragraph especially got my attention:

The benefits of Blakely as applied to sentencing under the Guidelines will be many. In my opinion, the principal benefit is that it will make sentencing transparent and honest. I have worked with hundreds and hundreds of inmates sentenced under the Guidelines, helping them perfect appeals and 2255 motions, and my most fundamental observation from that work is that defendants have been shockingly deceived and misled about what they were really up against at sentencing. This lack of knowledge has severely and adversely affected key decisions defendants have made at different stages of the process of defending themselves. I have seen more inmates than I can remember who have pled out, expecting sentences like 5 to 8 years of incarceration, and who ended up with a 10, 20, even 30-year sentence. Likewise, I have seen men turn down a plea for 5 years and go to trial, because they had been told their sentencing exposure was 8 years, and end up with a 25-year sentence.

Meanwhile, the brief filed in the Fifth Circuit by lawyers Richard Haynes and Walter Boyd in the case of Julietta Leza reminded me that counsel even in circuits that have found Blakely inapplicable to the federal guidelines must keep raising and briefing Blakely claims, lest they be accused of having waived these claims when (if?) SCOTUS applies Blakely to the federal guidelines. And the facts of the case also reminded me of the all-too-common and very depressing reality that women sentenced to long terms of incarceration in the federal system often were just bit participants in the crimes of their male companions. The federal guidelines were righteously intended to foster gender equality, but they often seem to be insensitive to the larger gender inequalities in broader society. Sigh.
Download Leza_brief.pdf