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The Power of Bureaucracy in the Response to Blakely and Booker

31 Pages Posted: 17 Feb 2006  

Ronald F. F. Wright

Wake Forest University - School of Law


How will different jurisdictions respond to the recent Supreme Court decisions in Blakely v. Washington and United States v. Booker, which require jury fact-finding to support certain types of sentences? The best clues in predicting the answer to this question come from the people who know this world best, the sentencing bureaucracy. Sentencing commissions, mostly for benign reasons, hope to preserve their own place in the sentencing structure, or to expand their role if possible. The particulars shift from place to place, but this powerful tendency of bureaucracies for self-preservation offers a reliable way to predict the reactions of sentencing systems to the upset from Blakely and Booker.

In states with a vibrant sentencing commission or other players who advocate for predictability and resource planning, an expanded role for juries at sentencing is the most typical result. In states with less influential actors at the center of crime and corrections policy, the trial court actors scattered among the courtrooms in that state by default have more influence with the legislature. Changes to the sentencing laws that give those trial actors more discretion have resulted.

The federal system, however, presents a special case. Because the federal institutional landscape makes it difficult for the federal commission to hope for jury-enhanced guidelines, the most realistic option that preserves the influence of the federal sentencing commission is asymmetrical guidelines that constrain minimum but not maximum sentences. Furthermore, the allure of mandatory minimum sentences, the worst possible outcome for a sentencing bureaucracy, will be far stronger for the U.S. Congress and for federal prosecutors than for their state counterparts. The federal commission will spend much of its time and political capital fending off mandatory minimum sentences, an option that has no politically realistic chance in the states.

The article closes with observations about the politics of crime during major shifts in sentencing rules. One lesson to draw from the experience after Blakely and Booker is that the partisan balance in the legislature does not tell the entire story. Institutions matter, and the long-term resources and habits of commissions and other full-time criminal justice bureaucracies can outlast the partisan agendas of the present in shaping sentencing legislation.

Keywords: Criminal Sentencing, Sentencing Commissions, Crime Politics

JEL Classification: K42

Suggested Citation

Wright, Ronald F. mname, The Power of Bureaucracy in the Response to Blakely and Booker. Houston Law Review, 2006; Wake Forest Univ. Legal Studies Paper No. 885513. Available at SSRN:

Ronald F. Wright (Contact Author)

Wake Forest University - School of Law ( email )

P.O. Box 7206
Winston-Salem, NC 27109
United States
336-758-5727 (Phone)
336-758-4496 (Fax)

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