Blakely‘s impact on pleas and bargaining
Informed observers of the criminal justice system know that, at least before Blakely, criminal trials with juries were rare events. The latest data show that 97% of all federal convictions are obtained through guilty pleas, see United States Sentencing Commission, 2002 Sourcebook of Federal Sentencing Statistics, Figure C (May 2004), and state statistics are similar (though generally not as extreme).
Though the Blakely court did not cite these statistics directly, Chief Judge William Young of the US District Court of the District of Massachusetts highlighted his concerns about plea practices in US v. Green, a 177-page magnum opus opinion which found the federal guidelines unconstitutional just a few days before Blakely was handed down (background here). Judge Young asserted that “the Sixth Amendment guarantee of trial by jury has been eroded as never before in the history of our nation”:
the Department [of Justice] is so addicted to plea bargaining to leverage its law enforcement resources to an overwhelming conviction rate that the focus of our entire criminal justice system has shifted far away from trials and juries and adjudication to a massive system of sentence bargaining that is heavily rigged against the accused citizen.
The future after Blakely is so uncertain in part because it is unclear how the High Court’s decision will impact our system’s heavy reliance on bargained justice. Will there be more trials? Should there be? Will guilt/innocence be at issue in more trials or will we just have greater jury consideration of sentencing factors?
As we ponder these questions, we can and should examine and monitor how Blakely may be impacting both trial and plea practices. For example, here’s a newspaper story this morning from Tennessee in which a local DA reports that the “Blakely case affected [his] decision to accept a plea agreement” in a homicide case. I hope the media, along with the academy, will continue to explore what Blakely might really mean for trial and plea practices. (This Baltimore Sun article deserves praise for its recent look at these issues.)