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December 23, 2004

A Blakely Festivus for the rest of us

Though I am not planning a full Festivus celebration today, with all of the grand traditions, I am inclined to engage in a little Blakely airing of grievances

Of course, first on my list of grievances is the lack of a decision yet in Booker and Fanfan.  I made the mistake of giving thanks last month for a quick decision, but now I am aggrieved that federal and state criminal justice actors are still waiting for desperately needed Blakely clarification and guidance.

Next on my list of grievances is the failure of legal commentators to give Blakely the respect it deserves.  In this post, I previously explained why I thought Blakely might be called the Rodney Dangerfield of Supreme Court decisions, and the "no respect" decision suffered another blow from commentator Edward Lazarus' FindLaw essay today on "The Most Important Legal Developments of 2004." Blakely does not get one mention in the essay, even though in less than 6 months the ruling has already led to an expedited Supreme Court case, generated over 1300 on-line lower court appellate rulings, impacted probably tens of thousands of sentencings, and is prompting over a dozen jurisdictions to contemplate changes to current sentencing laws.

My last grievance to air (for now) is on the local front; I want to complain a bit about most Ohio courts working so hard to avoid applying Blakely to Ohio's sentencing system.  The most recent Ohio Blakely dodge comes this week in State v. Stillman, 2004 WL 2940813, 2004-Ohio-6974 (Ohio App. 5 Dist. Dec. 20, 2004), where the court rules that Blakely essentially has no applicability to Ohio's sentencing scheme.  As detailed in this helpful recent memo from the Ohio Sentencing Commission, the 8th District Court of Appeals is the only Ohio appellate court to reverse and remand sentences on Blakely grounds, even through judicial fact-finding is central to many Ohio sentencing determinations.

I suppose I can understand what drives Ohio courts to dodge Blakely: as I have previously highlighted, Blakely's formal rule could be extremely disruptive for Ohio's functional sentencing laws (background here and here).  Nevertheless, I think a fair reading of Blakely makes it applicable to various aspects of Ohio's sentencing system.  In the end, my biggest grievance may be with the Ohio Supreme Court, which thus far has shown no interest in directly addressing Blakely's applicability in Ohio.

I probably could go on, but then I might not have energy for the Festivus feats of strength.  But readers are welcome and encouraged to celebrate a Blakely Festivus by sharing their Blakely grievances in the comments.

December 23, 2004 at 11:00 AM | Permalink


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My Blakely Festivus grievance is that Blakely/Booker and Fanfan were even necessary. Wars were fought and people diedd to give us the rights we enjoy. But these are rights that so many are quick to give up,(we're supposedly at "WAR" remember) and they are rights that prosecutors and probation officers are quick to tell you don't exist to begin with.

Happy Festivus everyone. Serenity Now!

Posted by: bob | Dec 23, 2004 11:24:03 AM

What "dodge," Professor? Blakely is a formalistic (you call it "formal," but the gist is the same) rule. As Judge Easterbrook might say, the Ohio courts are merely applying the rule as expressed in Blakely. This is not like dodging Brown where the SCT's views were clear and many lower courts dragged their feet. That some lower courts do not reach the substantive result you want is not enough to call their actions a "dodge." You disappoint me. It is time to wrestle.

Posted by: Now Wait A Minute | Dec 23, 2004 11:59:22 AM

As I understand Blakely's rule, at its most formalistic, judges cannot make required findings that increase the legally effective available sentences. And as I understand Ohio law, judges are legally required in certain circumstances to make findings in order to sentence above the minimum and/or to impose the maximum. Ergo, the 8th District's application of Blakely seems the fairest reading of Blakely.

For a host or reasons, I am not a fan of the "fairest" reading of Blakely. And perhaps you are right that dodge is a strong word for the Ohio efforts to confine Blakely's reach. But I am right to complain about the need for the Ohio Supreme Court to step into the breach sooner rather than later. But perhaps I should just stop my griping and make a contribution to The Human Fund.

Posted by: Doug B. | Dec 23, 2004 1:38:39 PM

I completely agree that Ohio's courts are dodging Blakely because most of them are not confronting it head-on. Instead, they are making conclusions about its applications without explaining their reasoning. If this is not a "dodge", then I don't know what is.

I suppose we should congratulate the Fifth District from actually giving a reason for their conclusion. But the vast majority of the appellate districts have just concluded that Blakely applies because the maximum is a maximum without describing why the presumed minimum is not the maximum for Apprendi purposes.

As my comments suggest, I have been extremely disappointed with the quality of Ohio's decisions regarding Blakely. Maybe this will change, but as long as those courts give shoddy, conclusory opinions, I think its perfectly acceptable to accuse Ohio's appellate courts of dodging Blakely.

Maybe I have a purely local interest in this issue, but I think the manner in which Ohio's courts have dealt with Blakely is a bit more greivous than commentators' lack of respect for Blakely's impact.

Posted by: Disgruntled Ohio Lawyer | Dec 23, 2004 1:56:05 PM

although i haven't read every article you've posted, there doesn't appear to be much discussion about the double jeopardy implications of blakely. here in the ninth circuit, the ameline decision applies blakely to the guidelines but also opines that the district court is free to empanel a sentencing jury. when a defendant has pleaded guilty to distributing an unspecified quantity of drugs, jeopardy has attached. when the district court refuses to sentence the defendant and instead decides to conduct a sentencing mini-trial on the blakely facts of drug quantity there is, in my view, a serious double jeopardy problem. we're wrestling with this issue out here in sunny california (at least i am) and would love to hear other's views.

Posted by: afpd | Dec 23, 2004 2:50:05 PM

I love the airing of grievances.
What is Festiuvs? Its for the rest of us.

Festivus is not over until you pin me!

Posted by: Ander | Dec 20, 2006 8:56:55 PM

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