The Blakely Earthquake Exposes the Procedure/Substance Fault Line

3 Pages Posted: 31 May 2005

See all articles by Stephanos Bibas

Stephanos Bibas

University of Pennsylvania Law School

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In Blakely v. Washington, the Supreme Court required that juries, not judges, find beyond a reasonable doubt facts that raise maximum sentences under sentencing guidelines. The Justices of the Supreme Court have equivocated on whether this rule is procedural or substantive. If it is substantive, it should automatically apply retroactively on collateral review, and the Ex Post Facto Clause should hamstring substantive legislative fixes. If it is procedural and not a watershed rule, then Blakely's rule should not be retroactive on collateral review and legislatures should enjoy more freedom to repair guideline systems.

The majority and dissenters in Apprendi v. New Jersey and Blakely seemed to be talking past each other instead of engaging these issues. The majority's rhetoric suggests that Blakely protects essential substantive definitions of crimes. Logically, then, it should be fully retroactive, but Justices in the majority have been inconsistent on this point. The dissenters, in contrast, view the majority's rule as a mindless formalism, a mere procedural hoop through which legislatures must jump. On this logic, Blakely's rule should be procedural and non-retroactive. Once again, though, the dissenting Justices have been inconsistent on this point.

Apprendi and Blakely have posed fundamental questions of what is an element of a crime and what justifies punishment. Sadly, Booker v. United States retreated from engaging these deep questions. And when the Court has addressed the right questions, it has given the wrong answers by shoehorning substantive rights into the Fifth and Sixth Amendments, which do not discuss the definitions of crimes and punishments. Instead, the Court should have addressed these concerns via the Eighth Amendment, which naturally links crimes to punishments.

Keywords: Apprendi, Blakely, Booker, criminal procedure, Due Process Clause, Sixth Amendment, reasonable doubt, jury trial

JEL Classification: K14, K40, K41

Suggested Citation

Bibas, Stephanos, The Blakely Earthquake Exposes the Procedure/Substance Fault Line. Federal Sentencing Reporter, Vol. 17, No. 4, April 2005, Available at SSRN:

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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