Law and Punishment
On September 12, 2004, the New York Times quoted sentencing-law expert Frank O. Bowman of Indiana University as saying: "There has not been a single case in the history of American criminal law with the immediate impact of this one." Benjamin Wittes, court commentator for the Washington Post, called the case "the single most irresponsible decision in the modern history of the Supreme Court."
The case they were writing about is Blakely v. Washington, decided last June. The Supreme Court's decision in Blakely held that portions of Washington state's laws on sentencing were unconstitutional. Why are these commentators, and much of the criminal justice community, up in arms about a decision that invalidates portions of one state's sentencing laws? The answer is: This decision and some of its predecessors gut the entire sentencing-reform movement in the United States. What is still more worrisome, these decisions changed through judicial fiat, without legislation or a constitutional amendment, the rules under which people are sentenced to prison. Worst of all, the Supreme Court has undermined the rule of law by handing down the Blakely decision only a few years after upholding the very same sentencing structure. In fact, it was the subversion of the rule of law by one of the decisions in this line of cases that convinced me to retire from the practice of law after 28 years as a lawyer, with 21 as a prosecutor. In effect, I have gone on strike from the legal system—like the characters in Ayn Rand 's Atlas Shrugged.
Oct 1, 2004
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