Blakely's Federal Aftermath

Abstract:     
In Blakely v. Washington (2004), the Supreme Court held that any fact that raises the maximum sentence that a judge may impose by law must be found by a jury, not a judge, beyond a reasonable doubt. Blakely raises far more questions than it resolves. In this limited space, I address five clusters of issues. Part I discusses how far Blakely is likely to go, and in particular whether it reaches the Federal Sentencing Guidelines. Part II addresses a host of transitional issues, especially what is left of the Federal Guidelines if Blakely applies to them. Part III discusses possible Blakely fixes or patches. Part IV considers briefly how plea bargaining might look different in a post-Blakely world. Finally, Part V muses on some of the fascinating jurisprudential issues raised by Blakely, such as the tension between formalism and pragmatism and the role of 18th-century history in our 21st-century world.

Number of Pages in PDF File: 11

Keywords: Blakely, Supreme Court, criminal procedure, sentencing, Apprendi, Sixth Amendment, Fifth Amendment, jury, crime, Sentencing Guidelines

JEL Classification: K14, K41

Accepted Paper Series