So nice to have data

The Minnesota Sentencing Guidelines Commission's report on long-term Blakely recommendations for Minnesota (available here) is a wonderfully rich and insightful document. Though there are many interesting facets of the report, I found most exciting the presence of hard data on the number of Minnesota cases really and clearly impacted by Blakely. As a result, the report confirmed for me the enormous disservice that flows from the US Sentencing Commission's failure to make publically available the data analysis that it has done about Blakely's impact on the federal system (lamented here).

In the Minnesota report, we learn that only roughly 7% of all cases annually in Minnesota involve "aggravated departures" that depend on judicial fact-finding and we also learn that the facts underlying such departures have been contested in only about 1/3 of all departure cases. Put another way, the Minnesota report astutely highlight that significantly lower than the number of cases with Blakely factors in Minnesota is the number of cases with contested Blakely factors. Consequently, the report notes, less that 2.5% of all Minnesota sentencing cases would seem to be directly impacted by Blakely (and, explains the MSGC, even these cases "can be addressed with modifications to [the existing sentencing] procedures").

Without any information coming from the US Sentencing Commission, we can only hazard a guess as to whether the data from the federal system might be in any way comparable. Of course, because judicial fact-finding is essential to upward departures and upward adjustments in the federal system, there is no doubt that a much larger percentage of federal cases involve Blakely factors (although, as noted here, that number has been estimated at the wildly different levels of roughly 20%, 45% and 65%). But again, as the MSGC report highlights, the key issue may not be the total number of cases with Blakely factors, but rather the total number of cases with contested Blakely factors.

As the Solicitor General has stressed, the US Sentencing Commission is supposed to be an independent agency in the Judicial Branch. In service to that role, I sincerely hope the USSC will share the data it does have at least directly with the Supreme Court and with all the parties to the Booker and Fanfan litigation. (I have been wondering lately about the propriety of the USSC, as a Judicial Branch actor, apparently sharing its data ex parte with just one of the litigants in Booker and Fanfan.) Moreover, as the USSC knows, the whole criminal justice world is watching how the federal system is dealing with Blakely; the USSC should be championing the values and importance of transparency and even-handedness in the development and dissemination of sentencing data.

Put simply, the work of Minnesota Sentencing Guidelines Commission has provided an exemplary model of what sentencing commissions can do to help everyone through the Blakely turmoil. I hope other commissions will follow its sterling example, and soon.