[GCFL-discuss] Scalia

[gcfl-discuss at gcfl.net]

On Thu, 13 Jan 2005 15:54:09 -0500 gcfl-discuss at gcfl.net writes:
> 
> Siarlys
> Do you remember the discussion we had about the court decision on 
> BLAKELY v.
> WASHINGTON?  There's an item in the news about a decision that might 
> help
> Martha Stewart.  But nobody I hear is mentioning the specifics 
> thereof. Do
> you know what they're talking about?  Do you know what I'm talking 
> about?
> It sounds very similar to BLAKELY v. WASHINGTON. The new case is 
> United
> States v. Booker.
> 
> greenBubble

Yes, I am familiar with BOOKER, but I have not read the text of the
decision yet. I will soon. I am in Alderson, West Virgina, for several
months, and of course everyone is talking about the case. It probably
won't do nearly as much good for nearly as many people as seem to have
some expectations, but...

... IF the federal sentencing guidelines were applied in such a way that
a judge found a fact to be true that had not been considered and found
true by a jury, THEN the sentence would be invalid, and have to be
remanded for resentencing. I doubt this would make much difference for
Martha Stewart, who got a very low sentence. By the time this decision
could be applied to her specific case, her sentence will have expired
anyway. It takes some time for legal filings and response filings and
hearings and such.

I do hope it will be helpful to a man I met recently, brining his
adorable baby boy to visit his wife (the boy's mother, of course), who is
himself going to be sentenced after the judge has a chance to see how the
BOOKER decision will apply to sentencing options. Dad has been clean for
over a year and a half -- and had a bait-and-switch pulled on him in a
plea bargain, after being assured his prior record status allowed for a
range of 0 - 10 years. If it were up to me he'd get ten years probation
(which can turn into a ten year sentence if conditions are violated,
which is plenty of protection for the public in my book).

BLAKELY and BOOKER both focus on the maximum sentence allowed by law.
Judges still have discretion as to what sentence UNDER the maximum to
impose. Some people expect that mandatory minimums will be abolished too,
but I don't expect that will happen. Mandatory minimums are atrocious,
but they were set in statute, by Congress. (It was a bipartisan fiasco,
engineered by the late Tip O'Neill). They are not about the maximum
sentence, and they are not from the sentencing commission guidelines.

More to follow if I find anything illuminating. The full text of the
decision is available at the Supreme Court web site, or at
www.findlaw.com.

Siarlys