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June 24, 2008

Is Blakely showing its age as it turns four?

Today marks the four-year anniversary of the Supreme Court's profoundly important constitutional ruling in Blakely v. Washington.  Its jurisprudential godfather, Apprendi v. New Jersey, will turn eight on Thursday.  Both merit re-reading as a fitting celebration of their birth and jurisprudential development.

Though my first post on the Blakely case, headlined "Blakely..... WOW!!", still captures my feelings about the ruling, the passage of time has me rethinking my assertion in this July 2004 Slate commentary that "Blakely is the biggest criminal justice decision not just of this past term, not just of this decade, not just of the Rehnquist Court, but perhaps in the history of the Supreme Court."  (Notice that I included the term "perhaps," ever aware that I might later need to back-track from such an extreme assertion.)

Of course, the profound significance of Blakely on day-to-day criminal justice realities is still evident to anyone practicing in federal courts or in the dozens of other jurisdictions that have had their sentencing laws modified (or transmogrified) because of Blakely.  Still, back in summer 2004, I really thought — perhaps hoped — that the Blakely Five, given the broad language and strong themes of the Blakely majority opinion, were prepared and eager to champion, through additional major constitutional rulings, the traditional adversarial procedures that Blakely extolled in a wide array of sentencing contexts. 

Specifically, I expected the Blakely Five to take up quickly Sixth Amendment challenges to judicial fact-finding in diverse sentencing settings — e.g., revoking supervised release, ordering restitution.  I also thought that the Blakely Five might be eager to reconsider the prior-conviction and mandatory minimum exceptions to the Apprendi principle.  In 2004, I also believed that the Fifth Amendment holding and due process principles implicit in Blakely might find broad expression in all various sentencing settings (and I certainly did not expect to be still fighting uphill battles in lower courts against sentencing enhancements based on acquitted conduct).

Four years later, however, as lower courts continue to cabin the reach and impact of Blakely (as highlighted by a Tennessee high court ruling just today), it is hard to notice any continuing aftershocks of the Blakely earthquake.  One obviously explanation, of course, is that the Booker advisory remedy provided a relatively easy "out" for the federal system and others dealing with the constitution complications Blakely created for structured sentencing systems.  But, perhaps even more significantly, the Justices' apparent disinclination in the last four years to consider Blakely-expanding claims made by defendants has sent a clear (and intended?) signal to lower courts that the Justices are generally disinclined to follow-up on Blakely in any dramatic way.

June 24, 2008 at 04:59 PM | Permalink


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While you were thinking of all the possible extensions/applications of Blakely, the defense bar was spinning its wheels trying to get Almendarez-Torres overruled.

To this day, I don't understand how defendants who plead guilty and waive their right to a jury trial can possibly think that their case presents a good vehicle for deciding whether a jury must find the fact of prior conviction b.a.r.d.

The Fifth Circuit said last year that pursuing such claims amounts to professional misconduct. I disagreed insofar as the court included defendants who had demanded a jury trial on the issue, but wholeheartedly agree as to defendants who plead guilty.

Posted by: Steve | Jun 24, 2008 8:27:25 PM

Good to see everyone (Steve) returning to their pet issues.

I appreciate the idea that Blakely hasn't transformed the world. But that's not because of any problem with the Blakely 5 - the issues you want Blakely extended to are pretty narrow - but rather it's because of 2 things. First is Justice Ginsburg's flip-flop in Booker. Second is state systems that, surprisingly easily, adapted to Blakely by either going advisory (chickensh_ts) or having juries find facts.

If Ginsburg hadn't have flipped, I think the national impact of Blakely might have been greater. But then again maybe not - as far as I know, departure rates have remained pretty consistent in Blakelyized states.

Posted by: Anon | Jun 24, 2008 8:44:05 PM


At least I have a pet issue that has practical everyday consequences. You cannot imagine the amount of resources wasted responding to frivolous Blakely/Apprendi claims, all from defendants who want to game the system and claim that their sentences are artificially capped at some insanely low amount (a result the legislature surely never intended).



Posted by: Steve | Jun 25, 2008 8:57:02 AM

Actually, Steve, I know exactly how many resources are involved, seeing as how I make those arguments myself.

Posted by: Anon | Jun 25, 2008 2:45:52 PM

Thrilled to hear it.

How many times has a court accepted the argument that your client should receive a windfall sentence reduction because you believe Almendarez-Torres will be overruled?

Just curious.

Posted by: Steve | Jun 25, 2008 4:35:48 PM

Zero. And I'd make it again tomorrow.

Posted by: Anon | Jun 25, 2008 11:24:40 PM

Well, when you need a new set of tires after all that wheel-spinning, I know a good discount tire store.

Posted by: Steve | Jun 26, 2008 9:28:18 AM

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