Blakely: the academic gift that keeps on giving

I cannot resist the urge to end an amazing day at the Stanford Roundtable conference (details here and here) with a few very general reflections about the event and Blakely.

First, Professor Bob Weisberg (along with the Stanford students and staff) deserve great credit for setting the absolute gold standard for an academic event. (And I am not just saying this because I know event planners and participants may be reading.) The event's logistics have been wonderfully planned and executed. And, more importantly, the collection of superstars assembled — including not only so many leading sentencing academics, but also lawyers from all sides of Blakely and judges and members of sentencing commissions — is truly remarkable.

Second, the array of perspectives and insights which can be brought to bear on Blakely continues to astound me. Throughout the afternoon, I heard so many intriguing ideas and predictions — ranging from the "true" concerns of Justice Scalia, to the need for federal criminal code reform, to the possible impact of 9/11 on "regular" criminal justice policy to the expected fate of Harris and Almendarez-Torres — and I am leaving out dozens of other important matters. I am not even going to try to summarize this Blakely bacchanalia; I would need dozens of posts to even begin to do the event justice.

Third, I was very pleased to have an opportunity to articulate to this amazing group my nascent views about conceiving the Blakely rule — and more generally the broad project of sentencing reform — using two deceptively simple distinctions: a distinction between offense factors and offender factors and a distinction between factual determinations and legal determinations at sentencing. Like all simple distinctions, my budding notions of offense/offender and fact/law distinctions at sentencing are fuzzy and need considerable development. However, I continue to believe that such distinctions can significantly advance our understanding of the meaning and perhaps limited reach of the Blakely rule, and that they can also be of great value as we starting charting a new course for the future of sentencing reform.

Finally, as if the day was not entertaining enough, the evening was capped off with the excitement of knowing that we now may be only one game away from setting up another truly epic Yankees-Red Sox playoff battle.