Read all about Booker and Fanfan

Hooray, the Supreme Court transcript in Booker and Fanfan is now available here (thanks to a reader for the tip). It is a great read — all 110 pages! — though I think most of the highlights have been previously detailed in press and blog reports.

I continue to find especially noteworthy and important the effort by Justice Kennedy at pp. 24-25 to figure out whether there is some way to distinguish different facts for Blakely purposes. Though Justice Kennedy does not expressly articulate the sort of offense/offender distinction that I discuss here, it seems clear that he is eager to avoid a post-Blakely world in which, for purposes of the jury trial right, we must be “in for a penny, in for a pound.”

As I hope to explain later today at this conference (which will likely be keeping me off-line), I continue to believe my offense/offender distinction creates a sound and sensible way to divide up which facts must go to a jury. Moreover, a re-reading of Almedarez-Torres pointed me to the old case of Graham v. West Virginia, 224 U.S. 616, 629 (1912)Graham, the Court permits the use of distinct procedures when sentencing on the basis of prior convictions, and justifies the ruling with this telling passage:

This conclusion [that a prior conviction can be subject to different procedures] necessarily follows from the distinct nature of the issue and from the fact, so frequently stated, that it does not relate to the commission of the offense, but goes to the punishment only, and therefore it may be subsequently decided.