Forecasting Blakely‘s future

Though the first panel of this incredible Stanford conference I am attending is looking back at the jurisprudence which led to Blakely, the various other panels are in various interesting ways forecasting the future of Blakley. And yet, the main message I draw from the US Sentencing Commission’s memo about Blakely (as well as from the SG’s description of the memo) is that forecasting Blakely‘s future is a perilous endeavor.

Consider, for example, that the USSC memo instructively concludes that the ultimate impact of Blakely on the federal sentencing system is debatable:

[I]nitial estimates of the impact of the Blakely decision on the workload of the federal court community should be viewed with caution. Activities occurring in this period immediately following the decision will likely not represent longer term responses by the field and cause substantial overestimation of the impact. While a large number of cases may, at first blush, appear to be exposed to a Blakely effect, it is likely that far fewer cases will actually be affected because of the availability of ‘solutions’ (e.g., fully stipulated pleas, fully articulated indictments, waivers of Blakely, etc) in some courts or the likelihood that past practice will repeat itself (i.e., historically high plea rates prior to the advent of the federal sentencing guidelines) in courts where these options are not available.

Of course, the Acing SG states his views more directly on the uncertain impact and import of Blakely‘s application in the federal system, when he says in his letter to the Supreme Court that “the extent to which …plea agreements could or would reduce the impact of applying Blakely to the Guidelines is unknown.” Thus, based on both documents, it seems we can only be sure that we cannot be sure of Blakely‘s likely impact on the federal system.