Reforming the U.S. Sentencing Guidelines after Blakely

13 Pages Posted: 13 Dec 2004

See all articles by Stephanos Bibas

Stephanos Bibas

University of Pennsylvania Law School

Date Written: December 2004


In Blakely v. Washington, the Supreme Court all but held that juries must find beyond a reasonable doubt facts that raise sentences under sentencing guidelines. This essay, originally prepared as testimony before the United States Sentencing Commission, explores the legal and political hurdles to reforming the federal Sentencing Guidelines. While removing all maxima from the existing guidelines (the so-called Bowman proposal) may work as an interim solution, it also may distort plea-bargaining behavior. Another proposal, to invert the Guidelines by rephrasing all aggravators as mitigators, is too gimmicky and would likely be held unconstitutional. The best long-term solution is to simplify and streamline the Guidelines down to a handful of the most commonly applied enhancements and to broaden sentencing ranges, to allow moderately more flexibility while retaining the Guidelines' binding force. This solution would track the best features of successful state guideline systems. The Commission should add more procedural protections to sentencing and limit but not abolish the relevant-conduct rules. These measures would best restore the balance of plea-bargaining power, empowering appellate and sentencing judges to check unilateral prosecutorial decisions.

Keywords: Apprendi, Blakely, determinate sentencing, sentencing guidelines, criminal procedure, sentencing

JEL Classification: K14, K40

Suggested Citation

Bibas, Stephanos, Reforming the U.S. Sentencing Guidelines after Blakely (December 2004). U Iowa Legal Studies Research Paper No. 04-01, Available at SSRN: or

Stephanos Bibas (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-746-2297 (Phone)


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