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June 24, 2006

Blakely turns two ... let's forum!

Two years ago today, the Supreme Court handed down its decision in Blakely v. Washington.  In my first post after the decision, I commented that "the ramifications of this decision for modern sentencing reforms cannot be overstated," and that there will "be lots and lots more litigation (some of which will surely make its way again to the Supreme Court) about what [Blakely] now means for the operation of structured sentencing systems."  As we await a decision from SCOTUS in Recuenco on the nature of Blakely error, and also look forward to two major Blakely cases on the docket next Term (Cunningham and Burton), the accuracy of these predictions are pretty clear.

So, on its birthday, what do you get for Blakely, the sentencing case that has everything?   My idea is to honor the day by starting to post any commentary sent my way in response to the "Blakely at two" blog forum I proposed in this post

June 24, 2006 at 08:30 AM | Permalink


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As you know, I am much more interested in the various remedy issues that Blakley fomented, such as whether Blakely errors are structural; whether Blakely applies retroactively (at least to Apprendi); and whether a trial court can, on remand, submit the (omitted) Blakely fact to a new sentencing jury without violating Double Jeopardy principles.

Moreover, because state courts can resolve these questions differently than federal courts, there are infinite combinations of answers to the foregoing questions depending on the state, the sentencing scheme at issue, and whether the state affords broader remedies than federal precedent requires.

So Blakely turns out to be the "gift that just keeps on giving," to quote Randy Quaid in "Christmas Vacation." But maybe we owe a gift NOT to Blakely, but to the lawyer who litigated the case in the Supreme Court and won -- Jeff Fisher. If so, then I vote to buy Jeff a sportjacket with leather elbow patches, given his impending move to academia.

Happy Birthday Blakely, and thanks Jeff.

Best regards,


Posted by: Steve | Jun 24, 2006 9:27:15 AM

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