Back to the Beginning, Again

Just when you thought the whole Blakely mess couldn't get more convoluted, the State of Washington has filed a petition for rehearing with the Supreme Court. Washington wants the Court to reconsider its ruling based on the Court's flawed assumption about sentencing procedures at the time of the nation's founding. Conventional wisdom says that sentences in those days were tied directly to guilty verdicts and left judges with no discretion (i.e., you get convicted of grand larceny you get 10 years, no mercy, no probation, etc.). Washington points out that several of the founders helped draft the initial U.S criminal code that included discretionary sentencing (i.e., at least 5 years, given the judge discretion to sentence anywhere between 0 and 60 months). Interesting historical point, but I'm not sure it invalidates any of Blakely or its theoretical underpinnings.