The Scope of Blakely's Impact

In a thoughtful piece quoting all the right folks, this New York Times article starts to guess at the number of criminal cases which may be affected by the Blakely decision. The article quotes Justice O'Connor's estimate from her Blakely dissent that 270,000 federal sentences over the last four year may be impacted; it also reports that John Kramer, a former executive director of the Pennsylvania Commission on Sentencing, has estimated that the decision could affect almost 90,000 state cases in the same period. In my view, the numbers discussed in the article are both understated and overstated.

The numbers are understated because they focus only on traditional sentencing cases. Based on broad and bold language in the majority's opinion, defendants and their lawyers may have grounds to argue that the principles and new mandates of Blakely extend to, and require modifications of, other parts of the criminal justice system in which judges make factual findings. The decision in Apprendi rippled in this way through some unexpected parts of the criminal justice system, although lower courts typically gave Apprendi a narrow reading in order to limit is ultimate impact. Lower courts may likewise try to read Blakely narrowly, but that will take some more work.

The numbers are overstated because it is extremely unlikely that every --- or even most --- previously sentenced defendants with viable Blakely claims will challenge previously imposed sentences. Some defendants with viable Blakely claims may have already completed or be close to completion of their sentence; many other defendants will not know they have a viable claim or will not be able to secure a lawyer to pursue a collateral appeal.

In the end, though, no matter how you add up the numbers, everyone is going to be busy with Blakely for quite some time.