The Blakely Earthquake Exposes the Procedure/Substance Fault Line

5 Pages Posted: 21 Jan 2005

See all articles by Stephanos Bibas

Stephanos Bibas

University of Pennsylvania Law School

Multiple version iconThere are 2 versions of this paper

Date Written: December 2004


This essay, originally presented at the Stanford Law School symposium The Future of American Sentencing: A National Roundtable on Blakely, examines how the Supreme Court's majority and dissent could look at Blakely in such radically different ways. As the majority sees it, Blakely is a fundamental, ringing vindication of the substantive right to jury trial. On this view, Blakely should be fully retroactive to habeas and for Ex Post Facto purposes. But the dissent's view was so different that the two sides were speaking past each other. On that view, Blakely is a mindless formalism, just another hoop for legislatures to jump through or to evade.

Though I have been the leading critic of the Apprendi/Blakely line of cases, I must give the Supreme Court credit for forcing us to confront and bridge the artificial divide between substantive criminal law and criminal procedure. What is a crime - is it whatever the legislature labels as a crime? And why have a distinct sentencing phase, after the guilt phase and run by a different factfinder using looser procedures? Do these artificial divisions distract us from the moral import and message that our criminal justice system should be sending?

Apprendi and Blakely asked the right questions but gave the wrong answers. A better approach, I argue, would use not the Fifth and Sixth Amendments but the Eighth Amendment to regulate statutory and guideline penalties equally.

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

JEL Classification: K14, K40

Suggested Citation

Bibas, Stephanos, The Blakely Earthquake Exposes the Procedure/Substance Fault Line (December 2004). U Iowa Legal Studies Research Paper No. 05-01, 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)


Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics