Conceptualizing Blakely

14 Pages Posted: 26 Nov 2004

See all articles by Douglas A. Berman

Douglas A. Berman

Ohio State University (OSU) - Michael E. Moritz College of Law


The Supreme Court's decision in Blakely v. Washington has generated impassioned judicial and academic criticisms, perhaps because the "earthquake" ruling seems to announce a destructive rule in search of a sound principle. Read broadly, the jury trial rule articulated in Blakely might be thought to cast constitutional doubt on any and all judicial fact-finding at sentencing. Yet judicial fact-finding at sentencing has a long history, and such fact-finding has been an integral component of modern sentencing reforms and seems critical to the operation of guideline sentencing. The caustic reaction to Blakely reflects the fact that the decision has sowed confusion about constitutionally permissible sentencing procedures - and risks impeding the continued development of sound sentencing reforms - without stating a clear principle to justify the disruption it has caused.

But extreme concerns about Blakely are the result, in my view, of a failure to appreciate the decision's core principle, as well as from the Supreme Court's failure to articulate the proper limits of that principle. I see a fundamental - and fundamentally sound - principle at work in Blakely, and I believe the Blakely rule, once properly conceptualized and defined, is neither radical nor necessarily destructive to the project and goals of modern sentencing reforms.

The fundamental and sound principle at work in the Blakely line of cases, as well as the principle's proper limit, centers on an essential offense/offender distinction. The Constitution frames the jury trial right in terms of "crimes," which are the basis for a "prosecution" of "the accused." This language connotes that the jury trial right attaches to all offense conduct for which the state seeks to impose criminal punishment, but the language also connotes that the jury trial right does not attach to any offender characteristics which the state may deem relevant to criminal punishment. That is, all facts and only those facts relating to offense conduct which the law makes the basis for criminal punishment are subject to the jury trial right; such facts are in effect the essential parts of those "crimes" which the state wishes to be able to allege against "the accused" in a "criminal prosecution."

Keywords: sentencing, guidelines, criminal law, Seventh Amendment

JEL Classification: K14, K42

Suggested Citation

Berman, Douglas A., Conceptualizing Blakely. Available at SSRN:

Douglas A. Berman (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Street
Columbus, OH 43210
United States
614-688-8690 (Phone)

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