« Justice O'Connor speaks!! | Main | Read all about it... »

July 23, 2004

Blakely's impact on pleas and bargaining

Informed observers of the criminal justice system know that, at least before Blakely, criminal trials with juries were rare events. The latest data show that 97% of all federal convictions are obtained through guilty pleas, see United States Sentencing Commission, 2002 Sourcebook of Federal Sentencing Statistics, Figure C (May 2004), and state statistics are similar (though generally not as extreme).

Though the Blakely court did not cite these statistics directly, Chief Judge William Young of the US District Court of the District of Massachusetts highlighted his concerns about plea practices in US v. Green, a 177-page magnum opus opinion which found the federal guidelines unconstitutional just a few days before Blakely was handed down (background here). Judge Young asserted that "the Sixth Amendment guarantee of trial by jury has been eroded as never before in the history of our nation":

the Department [of Justice] is so addicted to plea bargaining to leverage its law enforcement resources to an overwhelming conviction rate that the focus of our entire criminal justice system has shifted far away from trials and juries and adjudication to a massive system of sentence bargaining that is heavily rigged against the accused citizen.

The future after Blakely is so uncertain in part because it is unclear how the High Court's decision will impact our system's heavy reliance on bargained justice. Will there be more trials? Should there be? Will guilt/innocence be at issue in more trials or will we just have greater jury consideration of sentencing factors?

As we ponder these questions, we can and should examine and monitor how Blakely may be impacting both trial and plea practices. For example, here's a newspaper story this morning from Tennessee in which a local DA reports that the "Blakely case affected [his] decision to accept a plea agreement" in a homicide case. I hope the media, along with the academy, will continue to explore what Blakely might really mean for trial and plea practices. (This Baltimore Sun article deserves praise for its recent look at these issues.)

July 23, 2004 at 08:40 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Blakely's impact on pleas and bargaining:


Mr. Berman,

My uncle had one (2)two count information. Count 1 1st degree felony. He received a guideline sentence count 2nd degree felony punishable by 15 years maximum enhanced by habitual offender to 30 years and further enhanced by ordering count two(2) enhanced sentence to run consecutive of count one 91 0 guideline sentence. the maximum my uncle was to receive due. His original plea was 27 years count one(1) and 15 years concurrent on count (2) two. That’s a 100% increase beyond the guidelines maximum. The judge increased it not the jury verdict. I am hoping you will keep an eye towards Florida’s Justice System for those of us who are trying to help prisoners seek relief.
Theresa Herring

Posted by: Theresa Herring | Jul 23, 2004 5:29:32 PM

Mr Berman,
How will the Blakely case apply.? Will it be retroactive and how far? Will there be a window period?
Thank you,
Theresa Herring

Posted by: Theresa Herring | Jul 23, 2004 5:34:15 PM

I am hoping you will keep an eye towards Florida’s Justice System for those of us who are trying to help prisoners seek relief.

Posted by: Robe de Soirée 2013 | Dec 13, 2012 12:50:29 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB