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March 29, 2005

State debates over whether to Blakely-ize or Booker-ize

Among the many notable facets of the Booker decision was that provided little help to state courts struggling to interpret and give effect to Blakely.  But, especially as states are working on fixing their sentencing systems to deal with Blakely issues, Booker is having an impact on state debates in courts and legislatures and commissions.  Specifically, not only has Booker made clear that advisory guidelines are constitutional, but it seems to have given advisory guidelines a good name.

The impact of Booker can be seen in this editorial from Washington, which urges the state legislature to reject a bill that apparently provides for jury fact-finding of aggravating factors (Blakely-izing), and advocates instead the adoption of an advisory guidelines system (Booker-izing).  Similarly, INCourts reports here (building on a report from the Indiana Law Blog here) that "there has been an amendment to [Indiana's] Senate Bill 96, the General Assembly's attempt to deal with Blakely, that would appear to Booker-ize Indiana's sentencing statutes."  Before the amendment, Indiana's legislative fix was headed toward Blakely-izing (which is the remedy now in place because it was adopted by the Indiana Supreme Court in its big Smylie decision earlier this month (basics here, commentary here and here)).

As previously reported, Tennessee is headed toward a Booker approach in its developing Blakely fix (details here), and Alaska has already passed legislation that involves a little bit of Booker-izing and a little bit of Blakely-izing of its sentencing system (details here).

March 29, 2005 at 01:06 AM | Permalink


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