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September 11, 2004

Media analysis of Blakely

Though we are still in the calm before the media storm I expect to see around the Booker and Fanfan arguments next month, there is still much important and insightful media coverage of the Blakely story in various quarters.

For excellent coverage of state sentencing developments, this article discusses Blakely's impact in North Carolina (covering cases noted here), and this article reviews Blakely's impact in Washington state and documents that in "three separate cases, three different Superior Court judges gave contrary rulings on" Blakely. In addition, this article notes Blakely's potential impact in a significant juvenile "bind-over" ruling in which a state judge determined that a 12-year-old accused murderer could be tried in adult court.

Relatedly, I now have had a chance to read the full text of Benjamin Wittes' article on Blakely to appear in the October 2004 issue of The Atlantic Monthly (available here to subscribers). I think the piece is both sensational and a bit sensationalized.

The Atlantic piece is sensational for appreciating the scope and importance of the ruling. In the piece, Wittes draws comparisons to Roe v. Wade and Brown v. Board of Education, and I don't think it is inappropriate to put Blakely in such company. I suggested two months ago in my Slate article that Blakely could prove to be the biggest Supreme Court criminal justice decision ever. Of course, only time and subsequent developments will tell Blakely's place in legal history; but what I have seen in the last few months only reinforces my view that Blakely is as big as it gets.

Yet, the Atlantic piece is also a bit sensationalized for some of its hyperbolic descriptions of the consequences of the Blakely ruling. For example, the piece suggests that Blakely will "guarantee leniency for criminals in as many as 270,000 federal cases" and also asserts that "it's almost inevitable that the decision will either make sentencing guidelines unacceptably rigid or loosen them to the point of meaninglessness."

Though I am sure many defendants and defense attorneys would love to believe that Blakely is a guarantee of leniency for so many, readers of this blog know that some federal defendants have actually received longer sentences after Blakely, and not a single defendant has yet convinced a federal court to apply Blakely retroactively. Moreover, I do not think it is inevitable (or even likely) that Blakely rings a death knell for effective sentencing reform.

In fact, as Justice Kennedy in this dramatic speech and the ABA in this recent report have emphatically documented, there is no reason to believe we had truly effective sentencing reform in the federal system before Blakely. Thus, I think the Blakely decision merits at least some praise for invigorating a (long overdue) national conversation about sentencing policies, practice and procedures.

September 11, 2004 at 10:59 AM | Permalink


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I don't believe the SG's need to be scrapped all together. They are workable. We merely need to get rid of updward and downward departures. The sentence is what it is. No one should get a downward departure for being a snitch and no one should do more time for "relevant conduct." "Relevant conduct" and "substantial assistance" have no place in any SGs. If you prosecutors can't see that, then maybe you should be looking for another job. Take a step back and look at the big picture, not just what makes your job "easier." The constitutionality of the SGs is what matters. Doing "more" time is not the answer. Taking people off the streets for a time and hopefully having some of them turn their lives around is what is important.

I think we can all agree that if you break the law, you should pay the price for it; but the amount of time has to be reasonable. Doing time past a certain point has no value to anyone, but does create a drain on our tax dollars.

Times have changed and we all know now that "rehabilitation" is not the answer.

You want to keep in mind that the longer someone is incarcerated, the more time they spend with "known offenders" and the more time they have to "swap" information.

Doing time is not a deterrent. No one breaks the law by first asking themselves "I wonder how much time I'll do for this if I get caught?" They don't research the issue.

Let's apply some common sense.

Posted by: Shelly | Sep 11, 2004 3:14:19 PM

I missed your Slate article, so I was surprised to see the assertion that Blakely could be the biggest Supreme Court criminal justice decision ever. Bigger than, say, Gideon v. Wainwright? Blakely bears on a phenomenon, guided sentencing, that is only a couple of decades old. We did not live in another world before that. The difference between discretionary and guided sentencing is important, but it is not fundamental, like the difference between having and not having access to a lawyer at trial.

Posted by: Jeff | Sep 14, 2004 1:26:35 PM

Jeff, it is of course fundamentally important for defendants to have lawyers. But many did have lawyers before Gideon, and many have bad lawyers after Gideon. Gideon's requirement that states provide lawyers, in some cases, is "fundamental," but in theory and in practice the case has its limits. Blakely is also fundamental, because it is about what happens to every offender after he/she is convicted, which in turn impacts how we think about who gets convicted of what, which in turn impacts indictment and plea practices and so on and so on.

Though lots of future cases and other developments will create needed historical perspective on Blakely, for now I am content (and eager) to stress that this is a historic moment not just for sentencing reform, but for the entire shape and development of the criminal justice system. (Then again, of course, I am a little too close to all of this to have any real perspective, historical or otherwise.)

Posted by: Doug B. | Sep 26, 2004 12:03:22 PM

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