Late-night wrap up

Day two of the Stanford Roundtable conference provided still more wonderful insights, with great panels covering Blakely in the states, the impact on plea bargaining and other backward-looking and forward-looking litigation issues, and then a rousing finale with "idealistic reflections on the future of sentencing reform." As is now the norm in these dialogues, there was a lot of (often pessimistic) forecasting of what Blakely will come to mean, especially as legislatures react to the new constitutional rights and rules that Blakely has ushered in.

I have learned so much more about Blakely from the dialogues at this amazing Stanford event (beautifully put together by Professor Bob Weisberg). I gained many new and important insights, and today's panels especially highlighted the risks and challenges that the Blakely decision poses for the future of modern sentencing reform efforts.

But I continue to believe that Blakely stands for the fundamental — and fundamentally sound — basic principle that, in our constitutional system with its commitment to adversarial justice and jury rights, any factual finding (but not any legal conclusion) which concerns any criminal offenses (but not the offender) that by law defines punishment levels must be proven to a jury beyond a reasonable doubt (or admitted by the defendant). In other words, I believe Blakely articulates the simple and sound principle that any factual findings concerning any criminal offense which by law defines punishment levels is exactly what is a "Crime" in Article III, Section 2 of the Constitution (as well as the Sixth Amendment) to which a jury right attaches.