Thursday, July 29, 2004

Should Justice Breyer Recuse Himself from the Blakely challenges to the federal sentencing guidelines?

Ken Lammers at CrimLaw has an interesting post here questioning whether Judge Wilkins of the 4th Circuit and Justice Breyer should recuse themselves from cases raising Blakely in relation to the federal sentencing guidelines. It is an interesting read, in particular, for this quote from United States v. Glick, 946 F.2d 335 (4th Cir. 1991) (Chief Judge Wilkins affirms his ability to pass judgement on the proper application of the guidelines even though he was then sitting on the Sentencing Commission):
In an earlier case involving the appeal of a sentence, Chief Judge Stephen G. Breyer, United States Court of Appeals for the First Circuit, and former member of the Sentencing Commission, sua sponte raised the question whether he should disqualify himself from hearing that appeal. United States v. Wright, 873 F.2d 437, 445 (1st Cir. 1989) (Breyer, J., writing separately). Judge Breyer, who was extensively involved in the drafting and promulgation of the guidelines and policy statements that applied to the sentence in question, concluded that it would be proper for him to continue to participate in appeals in "typical Guidelines cases, unless they involve a serious legal challenge to the Guidelines themselves." Id. at 447. I agree.
Emphasis added. As Ken Lammers concludes, what more serious legal challenge to the guidelines than the possibility that they may be held not severable and struck down altogether?!