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October 23, 2005

Does Blakely draw a bright line? What is that line?

Back in August 2004, right after Blakely was decided, super-SCOTUS-litigator Jeff Fisher wrote this article highlighting the "virtues of bright-line rules" such as the one articulated in Apprendi and applied in Blakely.  However, the recent New Mexico Supreme Court Blakely ruling (basics here) asserts that the Apprendi-Blakely-Booker line of cases "ought not be viewed as drawing a bright line," and the California Supreme Court's summer ruling on Blakely (basics here, commentary here and here) likewise asserts that the "high court's precedents do not draw a bright line."

As the state Blakely mess reveals, Booker has certainly obscured whatever bright line Blakely may have aspired to create.  Moreover, as I detail in my recent Reconceptualizing Sentencing article, the Supreme Court's sentencing jurisprudence was conceptually muddled even before Blakely and Booker came along.  Writing in a similar vein in his recent Columbia Law Review article, Kevin Reitz describes the Supreme Court's Sixth Amendment jurisprudence as "constitutional Swiss cheese."

Further, depending upon how narrowly or broadly one might want to define jury trial rights, the "bright line" to be found in Blakely et al. could be quite narrow or quite broad.  The narrowest reading of Blakely suggests that judges may make all sorts of findings and judgments at sentencing except juries must make findings of historical fact relating to offense conduct when those factual findings formally increase the upper limit of legally available sentences.  The broadest reading of Blakely suggests that juries must make any and every finding or judgment that can have a legal impact on the defendant's sentence.  (This broadest reading rejects the prior conviction exception of Almendarez-Torres and the mandatory minimum exception of Harris.)

Problematically, in the many decisions in the Blakely line of cases, one can find support for the narrowest reading of Blakely and for the broadest reading of Blakely and for many readings in between.  Only time, future cases, and the work of all the Justices of the Roberts' Court will ultimately inform us as to whether Blakely in fact does draw a bright line and ast what the exact parameters of that line might be.

October 23, 2005 at 08:30 PM | Permalink


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