Saturday, August 21, 2004

The Blakely issue that really burns down the house

Reading this Professor Berman post titled "The next big Blakely issue: the prior conviction exception" makes me think that Virginia knew what it was doing when provided for bifurcated criminal trials, so the prior convictions would be considered by the jury in the sentencing phase but not necessarily in the guilt phase. In July, Chief Judge Jones of the W.D. Va. wrote in a footnote, "the fact of prior conviction is not the type of fact requiring jury determination," citing Apprendi. Professor Berman explains that "the theoretical soundness of Almendarez-Torres' 'prior conviction' exception to the Apprendi/Blakely rule has been widely questioned, and Justice Thomas' statements suggest that there are no longer five Justices who support this exception."

My metaphor for Blakely is "The Empire Strikes Back," the revenge of a judiciary that is sick of micro-managing of sentencing by the legislature and therefore quite pleased to pose this problem to those who write the laws - either rewrite the substance to eliminate the "mandatoriness" or rewrite the procedure to put the fact issues before the juries.

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