Apprendi, Blakely and federalism

I have previously highlighted here and elsewhere that, despite all the attention paid to federal sentencing issues, the story of Blakely in the states may be even more interesting and compelling.  In this post I spotlighted some deep federalism issues lurking in Booker and Fanfan and listening to the Indiana Supreme Court struggle with Blakely (details here) makes these issues feel quite real and tangible.

Well timed, then, is my receipt of a finalized draft of an article, scheduled for publication in the Dec. 2004 issue of the Federal Sentencing Reporter, by Professor Peter (Bo) Rutledge entitled "Apprendi and Federalism." Here are some highlights of the article, which you can download below, drawn from the introduction and conclusion:

Since the emergence of the Apprendi majority and its newly minted (and evolving) constitutional limits on criminal punishment, many commentators have begun to address its implications for the horizontal relations between the branches of government – between legislators and courts, between judges and juries, and between judges and prosecutors. Less widely addressed, though equally (if not more) important, has been the Apprendi doctrine’s implications for vertical relations, particularly federalism....

The Apprendi principle poses a challenge to justices, such as Justices Scalia and Thomas, who are committed to federalism principles. One might legitimately argue, as they do, that reforms such as sentencing guidelines and sentencing factors strip the jury of some of its traditional powers. Yet Duncan forces those justices to consider the impact their expansive interpretation of the Sixth Amendment on the states. To date, their opinions in cases such as Apprendi and Blakely do not seem to have been sufficiently sensitive to the impact of these decisions on principles of federalism. The approach offered here presents them with an opportunity to refocus on issues of federalism and to attempt to harmonize federalism with their commitment to the jury right.

Download rutledge_apprendi_and_federalism.doc