Very Interesting Blakely Essay

Over at Blakely Blog, Jason Hernandez provides a link to a very interesting draft of Phil Fortino's* "A Post-Blakely Era or Post-Blakely Error?", 38 COLUM. J. L. & SOC. PROBS. __ (forthcoming Oct. 2004), which I must admit is rather interesting. Mr. Fortino, although agreeing that Blakely applies to the federal sentencing guidelines, considers that Courts have jumped the gun in declaring that Blakely makes the guidelines unconstitutional and makes a very good argument for this. I would not be surprised if federal courts started taking this approach to Blakely, and I wonder whether the government will modify the all or nothing at all argument it has pursued to date: i.e., if Blakely applies, then you have to throw out the entire guidelines.

* Production Editor, COLUM. J.L. & SOC. PROBS., 2004-2005. J.D., Columbia University School of Law, expected 2005; M.A., B.A., Yale University, 2001.