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December 1, 2004

The impact of delayed Booker and Fanfan on the states

One reason I sincerely hope we won't have to wait until next year to see Booker and Fanfan (possibility noted here) is because state systems, as well as the federal system, are in desperate need of additional Blakely guidance as soon as possible.  As well documented by the great two publications of the Vera Institute's State Sentencing and Corrections Program (available here and here), and also by the terrific memo by Kevin Reitz for the ALI (available here), it is extraordinarily difficult for state policy-makers — not to mention state courts and state litigants — to take stock of modern sentencing reforms in light of all the critical questions that Blakely raises but does not answer.

Of course, Booker and Fanfan are federal cases and thus will not provide direct guidance to states.  But the way in which the High Court describes (or refines or changes) the meaning and application of Blakely should provide (I hope) some help to all the state actors now forced to cope with Blakely. 

Indeed, I would suspect that the state supreme courts with Blakely cases in front of them — which I know includes at least California, Colorado, Indiana, Maine, Minnesota and Washington (and probably others) — would like the benefits of the High Court's wisdom in Booker and Fanfan before rendering their state-specific rulings about Blakely's impact in their jurisdictions.  Moreover, state legislators and sentencing commission — both in states with structured sentencing now and also in states considering guideline reforms — certainly need more explanation of what judges can and can't do at sentencing before they can effectively and confidently more forward with planned sentencing reforms.

December 1, 2004 at 12:02 PM | Permalink

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