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June 8, 2005

A Blakely blank spot in sentencing reform principles

As evidenced by this AP story already appearing nationwide, the announcement on Tuesday by The Constitution Project's Sentencing Initiative of this set of "Principles for the Design and Reform of Sentencing Systems" is already generating some press coverage.  Though I have already commented briefly on these principles in this post, I realized this evening that these principles have a Blakely blank spot in that they make no mention whatsoever of incorporating jury decision-making or jury values into the sentencing process. 

The principles do speak to sentencing procedures in point 5, which states:

Meaningful due process protections at sentencing are essential.  Fair notice should be provided and reliable fact finding mechanisms ensured.  Judicial sentencing decisions should be subject to appropriate appellate review.

Relatedly, the principles also criticize the federal sentencing guidelines for placing "excessive emphasis on conduct not centrally related to the offense of conviction."  Nevertheless, as revealed by the reference to "judicial sentencing decisions," the principles suggest a judge-centered vision of sentencing that seems more in harmony with the ideas and themes expressed by Justice Breyer in his Booker remedy opinion than by Justices Scalia and Stevens in their Blakely and Booker opinions.

Though I am generally sympathetic to a judge-centered vision of sentencing, in the wake of Blakely I have come to see a number of potential virtues in incorporating jury decision-making and/or jury values into the sentencing process in some ways.  As detailed more fully in my recent "Conceptualizing Blakely" article, I believe Blakely expresses a fundamental and sound principle that defendants have a right to require the prosecution to prove to a jury all offense conduct for which the state seeks to impose criminal punishment.  I am a bit disappointed that this "Blakely principle" gets no attention in the Sentencing Initiative's initial statement of design principles, though perhaps it will get some play in the forthcoming background report and specific recommendations for a post-Booker federal sentencing scheme.

June 8, 2005 at 02:57 AM | Permalink


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