Questions and more questions

I want to say thanks again to the HLS Federalist Society for inviting me to participate in their event yesterday, at which I learned so much from my thoughtful co-panelists. Yet, as seems true for all my Blakely experiences, I came away from the Harvard discussion with a lot more questions than answers. Though a complete list of questions could go on and on, here are a few on the top of my mind right now:

1. Which Justice in the Blakely majority does DOJ really think won’t want to apply Blakely to the federal guidelines? I heard in Boston yet again that DOJ is confident it will prevail in Booker and Fanfan. But, as I noted in this post, I cannot figure out which Justice they think will reverse course now. The forceful written opinions and votes of Justices Scalia, Stevens and Thomas in Apprendi and Ring (and Harris) and Blakely make it hard for me to believe they want to retreat. Perhaps the speculation is that Justices Ginsberg or Souter will have a change of heart, but their forceful opinions and votes in Jones and Ring and Harris make me doubt that they really want to exempt the federal system from Blakely. Indeed, as I suggested here, I think it is more likely Justices Breyer and Kennedy — both of whom changed sides to support the expansion of Apprendi in Ring — could join the Blakely five than that one of the five will defect now.

2. What famous case will Blakely be remembered with? I have previously mentioned here and here Blakely in the company of Gideon and Miranda, and others have mentioned non-criminal cases like Brown and Roe. But one HLS panelist interestingly asserted that Blakely will be remembered more like Lochner than like Brown. Of course, as I suggested at 37 Crim. L. Bull. 647-49 a few years ago, I really think the best parallel for the Apprendi/Blakely line is probably the capital sentencing decision in Furman. However, that analogy would have really fit if the High Court had used Blakely to narrow Apprendi in the way that in Gregg the Court narrowed Furman. Instead, of course, Blakely expanded Apprendi and so now we are in uncharted territory.

3. How much AUSA time has been spent filing 10,000+ superceding indictments, and how much more AUSA time will be spent re-doing all this work if DOJ prevails in Booker and Fanfan? I heard that perhaps around 100 superceding indictments have been filed in the District of Massachusetts alone this summer. Considering that there are 93 other federal districts, many much larger than D. Mass., it seems safe to guess that AUSAs have drafted and filed more than 10,000 Blakely-ized superceding indictments this summer. (That works out to over 150 every work day!). The irony, of course, is that if DOJ wins on either of its claims in Booker and Fanfan, all that work will need to be re-done. If Blakely is inapplicable to the federal guidelines OR if Blakely applies and the guidelines are not severable, all the Blakely-ization in indictments will be surplusage, and AUSAs will have 10,000+ indictments to redo again.

Finally, the biggest question on my mind now merits a separate post later. But I can preview it here: Do Justice Breyer and other Blakely dissenters think the Sixth Amendment right to counsel should not apply at sentencing?