Media analysis of Blakely

Though we are still in the calm before the media storm I expect to see around the Booker and Fanfan arguments next month, there is still much important and insightful media coverage of the Blakely story in various quarters.

For excellent coverage of state sentencing developments, this article discusses Blakely‘s impact in North Carolina (covering cases noted here), and this article reviews Blakely‘s impact in Washington state and documents that in “three separate cases, three different Superior Court judges gave contrary rulings on” Blakely. In addition, this article notes Blakely‘s potential impact in a significant juvenile “bind-over” ruling in which a state judge determined that a 12-year-old accused murderer could be tried in adult court.

Relatedly, I now have had a chance to read the full text of Benjamin Wittes’ article on Blakely to appear in the October 2004 issue of The Atlantic Monthly (available here to subscribers). I think the piece is both sensational and a bit sensationalized.

The Atlantic piece is sensational for appreciating the scope and importance of the ruling. In the piece, Wittes draws comparisons to Roe v. Wade and Brown v. Board of Education, and I don’t think it is inappropriate to put Blakely in such company. I suggested two months ago in my Slate article that Blakely could prove to be the biggest Supreme Court criminal justice decision ever. Of course, only time and subsequent developments will tell Blakely‘s place in legal history; but what I have seen in the last few months only reinforces my view that Blakely is as big as it gets.

Yet, the Atlantic piece is also a bit sensationalized for some of its hyperbolic descriptions of the consequences of the Blakely ruling. For example, the piece suggests that Blakely will “guarantee leniency for criminals in as many as 270,000 federal cases” and also asserts that “it’s almost inevitable that the decision will either make sentencing guidelines unacceptably rigid or loosen them to the point of meaninglessness.”

Though I am sure many defendants and defense attorneys would love to believe that Blakely is a guarantee of leniency for so many, readers of this blog know that some federal defendants have actually received longer sentences after Blakely, and not a single defendant has yet convinced a federal court to apply Blakely retroactively. Moreover, I do not think it is inevitable (or even likely) that Blakely rings a death knell for effective sentencing reform.

In fact, as Justice Kennedy in this dramatic speech and the ABA in this recent report have emphatically documented, there is no reason to believe we had truly effective sentencing reform in the federal system before Blakely. Thus, I think the Blakely decision merits at least some praise for invigorating a (long overdue) national conversation about sentencing policies, practice and procedures.