Doug Berman's Sentencing Law Resources: Blakely Blasics

Since the 1970s, sentencing has undergone a political and legal revolution; it has been transformed from a field once rightly accused of being "lawless" to one that is now replete with law. Legislatures and sentencing commissions have developed various "structured" or "guideline" systems to govern sentencing in state and federal courts, and the evolution of modern sentencing reforms is one of the most dynamic and interesting stories in American legal history.

On June 24, 2004, the sentencing reform story was forever changed when an earthquake in the form of the Supreme Court's decision in Blakely v. Washington struck the sentencing landscape. Though technically only declaring unconstitutional one portion of one state's sentencing guideline system, Justice Antonin Scalia's dramatic opinion for the Court in Blakely suggests that any and every fact which increases a defendant's effective maximum sentence must be found by a jury beyond a reasonable doubt or admitted by the defendant.

In other words, Blakely suggests the Constitution does not permit judges to find facts which increase applicable sentencing ranges, even though nearly all sentencing reforms of the past two decades have made judges central and essential fact-finders in the application of sentencing laws. Consequently, the ramifications of Blakely for modern guideline sentencing reforms - indeed, for the entire criminal justice system - cannot be overstated.

• For more on Blakely's impact on federal sentencing, see Booker Basics
• For more on Blakely's impact on state sentencing, see Blakely in the States

Overview Articles and Materials

• The Roots and Realities of Blakely , Criminal Justice Magazine (Winter 2005)
• "Sentencing Guidelines on Trial," Philadelphia Inquirer (Dec. 12, 2004)
• "Conceptualizing Blakely ," 17 Fed. Sent. Rep. 89 (Dec. 2004)
• "Lawyers Weigh In on Debate Over Sentencing Guidelines," New York Law Journal , (Oct. 4, 2004)
• "Can the Court Clean Up its Blakely Mess?" Legal Affairs Debate Club , Sept. 2004
• "U.S. Courts Await Clarity on Sentencing Guidelines," Chicago Tribune , Aug. 29, 2004
• "Compound Sentencing Problems," ABA E-Journal , Aug. 6, 2004
• "Locked In," Boston Globe , Aug. 1, 2004
• "A Blakely Primer: An End to the Federal Sentencing Guidelines?," Aug. 2004
• "Supreme Court Clean up in Aisle 4: Blakely is too big and messy to ignore," Slate, July 16, 2004.
• "Examining the Blakely Earthquake and its Aftershocks," 16 Fed. Sent. Rep. 307 (2004)

Posts of Note From Professor Berman's Sentencing Law and Policy Blog

January 2005

• A Booker week in review and preview (Jan. 23, 2005)
• More collected Booker (and Wilson) commentary (Jan. 17, 2005)
• Remembering the Blakely state stories (Jan. 15, 2005)
• The FSG are dead, long live the FSG!! (Jan. 12, 2005)
• SCOTUS speaks: Booker and Fanfan have arrived!! (Jan. 12, 2005)
• Blakely not a problem in Idaho (Jan. 6, 2005)
• Holiday season highlights (Jan. 5, 2005)
• Suggesting sentencing resolutions (Jan. 1, 2005)
• CJ Rehnquist sets notable themes for 2005 (Jan. 1, 2005)

December 2004

• Highlights of a remarkable USSC document (Dec. 31, 2004)
• Sentencing year in review (Dec. 26, 2004)
• Blakely's Hawaiian punch (Dec. 23, 2004)
• A Blakely Festivus for the rest of us (Dec. 23, 2004)
• The story of Blakely in the real Apprendi-land (Dec. 12, 2004)
• In re state Blakely interpretations (Dec. 9, 2004)
• 'twas the morning before Booker ? (Dec. 8, 2004)
• Deep thoughts about shallow conceptions of equality (Dec. 8, 2004)
• Will Booker and Fanfan clarify Blakely admissions? (Dec. 6, 2004)
• Reflections on retroactivity and constitutional responsibilities (Dec. 4, 2004)
• Dynamic and debatable preliminary USSC data (Dec. 1, 2004)

November 2004

• How and how fast might Congress react to Booker and Fanfan ? (Nov. 30, 2004)
• Broad public support of juries and Blakely (Nov. 27, 2004)
• Substance, procedure and the future of mandatory minimums (Nov. 24, 2004)
• Will federal judges engage in the policy debate after Booker and Fanfan ? (Nov. 21, 2004)
• The brewing battle over the Bowman fix (Nov. 18, 2004)
• Brief summary of USSC hearing highlights (Nov. 18, 2004)
• The Blakely costs and court crisis (Nov. 12, 2004)
• Blakely delays, deals and dodges (Nov. 11, 2004)
• Booker and Fanfan pre-reading guide (Nov. 9, 2004)
• Fascinating Blakely reports on Enron trial (Nov. 6, 2004)
• Blakely analysis and insights for ALI's sentencing project (Nov. 1, 2004)

October 2004

• A November to remember (Oct. 31, 2004)
• Indicting up Gotti (Oct. 28, 2004)
• Conceptualizing Blakely (in draft) (Oct. 24, 2004)
• Judge Nullification (due to mandatory guidelines) (Oct. 19, 2004)
• More inside-the-beltway Blakely negativity (Oct. 18, 2004)
• The data plot thickens (Oct. 7, 2004)
• Justice Breyer's (lack of) perspective (Oct. 5, 2004)
• A Fall Classic? (Oct. 5, 2004)

September 2004

• Why I an optimistic about sentencing reforms (Sept. 30, 2004)
• Sentenced for an uncharged murder (Sept. 30, 2004)
• Who will be getting "sentencing windfalls"? (Sept. 28, 2004)
• Carefully thinking through "sentencing windfalls" (Sept. 26, 2004)
• Carefully thinking through "sentencing chaos" (Sept. 26, 2004)
• What Blakely is really about: adversarial versus administrative justice (Sept. 21, 2004)
• Democracy and Distrust (Sept. 18, 2004)
• Why the federal system is not worth saving from Apprendi -land (Sept. 17, 2004)
• Circuit contrasts: variations in appellate justice (Sept. 15, 2004)
• The future of mandatory minimums? (Sept. 12, 2004)
• Pragmatism and Blakely's retroactivity (Sept. 8, 2004)
• Pulp Fiction (Sept. 6, 2004)
• Blakely , federalism, retroactivity and pragmatism (Sept. 6, 2004)
• Swing(ing) Justices? (Sept. 2, 2004)

August 2004

• Formalism meets functionality: An Ohio case study (Aug. 29, 2004)
• Dollars and Sentencing (Aug. 24, 2004)
• The next big Blakely issue: the prior conviction exception (Aug. 21, 2004)
• Principle versus pragmatism (Aug. 19, 2004)
• The Empire Strikes Back (Aug. 14, 2004)
• > State of the States (Aug. 6, 2004)
• How the Blakely saga would get resolved in Hollywood (Aug. 3, 2004)
• Ladies and Gentleman, stop your engines... (Aug. 3, 2004)

July 2004

• Wherefore art thou USSC (July 30, 2004)
• Thesaurus of rhetoric (July 29, 2004)
• If you destroy it, they will come (July 28, 2004)
• Deep Thoughts... (July 28, 2004)
• Lawlessness versus leniency: the real severability debate (July 28, 2004)
• Thoughts on retroactivity and clemency (July 25, 2004)
• Blakely's impact on pleas and bargaining (July 23, 2004)
• Just sentencing: a range of possibilities (July 18, 2004)
• The challenge for SCOTUS (July 14, 2004)