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May 1, 2005

Indiana's Blakely fix is now law

Michael Ausbrook at INCourts is reporting here that Indiana's Blakely fix legislation, known as Senate Bill 96 while in development, has become law.  As I explained in this prior post, though the state was once headed toward Blakely-izing its sentencing scheme, I believe the enacted version of Senate Bill 96 Booker-izes Indiana's sentencing statutes by making them advisory.  Michael Ausbrook in this post explores the possible impact of Indiana's new legislation on sentencing appeals, and he reports that a "lawyer who knows a great deal about Blakely in Indiana has said that Senate Bill 96 will set criminal law in Indiana back decades."

May 1, 2005 at 09:43 AM | Permalink


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Yes, Indiana sentencing law apparently has taken a big leap backwards to 1977, when the current presumptive sentencing scheme was adopted. But is this really a big surprise? This is exactly what Justice O'Connor, in her Blakely dissent, warned would happen if you forced states to choose between jury sentencing trials and a completely discretionary sentencing system. And while we're at it, it sure looks to me like Tennessee's Gomez decision is a better deal for defendants than the proposed legislative fix, because it retains the current minimum-presumptive sentence instead of going to a completely discretionary system. If I were a Tennessee defense attorney, I might keep my mouth shut about Gomez. At the same time, might it just be possible that the Tennessee AG is fighting Gomez for exactly the same reason--they'd rather have the legislative fix?

Posted by: Nelg | May 2, 2005 10:30:38 AM

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