Sentence Deconstruction

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In a new FindLaw column, attorney Mark Allenbaugh considers the fallout from the Supreme Court's recent decision in Blakely v. Washington, which overturned that state's sentencing system because it required judges to make punishment decisions based on facts not found by the jury. At least three federal judges already have found that the same flaw makes the federal sentencing guidelines unconstitutional.

The upshot, Allenbaugh says, is that hundreds of thousands of offenders will have to be resentenced. Over the short term, he suggests, judges will have three options: impose sentences based only on the facts found by the jury, which in practice would mean imposing the statutory minimum; split all trials into guilt and penalty phases; or treat the sentencing guidelines as advice rather than binding rules. Over the longer term, Allenbough hopes the crisis in sentencing provoked by Blakely will lead to saner policies that avoid both the unfairness of wide disparities and the unfairness of rigid and draconian mandatory minimums.

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  1. mandatory sentencing is one of the most visible signs of the end of Particularity in our society — by which i mean Ideology is becoming the modus vivendi of western civ, most prominently in america. the idea that a few broad, abstracted rules can do a better job in sentencing than case-by-case analysis is a ridiculous and dangerous reduction.

    i would by no means take this single reversal as a sign the societal trend has changed — the decision itself was based on another abstraction, not an inclination to Particularity — but is it helpful nonetheless.

  2. Ashcroft’s gotta be pissed. With the legality of the sentencing guidelines in question, his list of judges who go below them is now headed for the trash can.

  3. Back in the early 90’s I was tagged for longterm (4 months) federal jury duty on a RICO drug trial. We had 13 defendants and over 100 interconnected charges.

    2 things bothered the whole jury (I ended up the foreman):

    The US marshals who ushered us around kept pressuring us to “hurry up” telling us that they couldn’t imigane what we had to deliberate about (after the trial I searched for and found confirmation of the fact that our “guards” had worked hand in hand with many of those testifying in different cases, no I can’t imagine how that could be jury tampering, but I have since found out it is stantard operating procedure).

    And the second, the Judge kept telling us the sentencing was not our concern. Even though a guilty verdict could put a guy in jail for selling a single bag of pot due to the conspiracy conviction).

    To this day I belive it was a sham so profound it would have had Lenin and Mao smiling.

    You have no idea how happy I am over this decision.

  4. Correction:

    Even though a guilty verdict could put a guy in jail-FOR LIFE- for selling a single-7 GRAM- bag of pot due to the conspiracy conviction).

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