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Sentencing Law and Policy
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Tracking Blakely in the states

By Douglas Berman
November 7, 2004

If, as suspected, the US Supreme Court hands down Booker and Fanfan soon, the Blakely story will be become quickly and dramatically “federalized.” Technically, Booker and Fanfan are only about Blakely‘s applicability in the federal system, and the impact of the decision, no matter what it says, on the structure and direction of federal sentencing reform will be profound. 

But I will be reading Booker and Fanfan with an eye on what it might tell states about Blakely. Despite all the attention given to federal sentencing, the state sentencing story is probably far more important (because more than 90% of all criminal convictions are in state courts) and certainly far more dynamic (because state sentencing structures are amazingly diverse and are being impacted by Blakely in amazingly diverse ways).

A few weeks ago I detailed here the number of state Blakely cases, and the pace of rulings has only increased of late (with nearly 100 new rulings coming on-line in just the past three weeks).  As of this morning, on Westlaw there are 332 on-line state court rulings at least mentioning Blakely, of which 132 come from California’s courts alone. 

Helpfully, the Vera Institute’s State Sentencing and Corrections Program (details here), as well as Professor Kevin Reitz through his work with the ALI (details here), are broadly tracking and working on state Blakely issues.  In addition, Michael Ausbrook at INCourts continues to track effectively the Blakely story in Indiana (see his recent posts on Blakely trial, pleas and waivers and on on-going Indiana Blakely cases).  And, trying to keep apace with California developments are the folks at both the First District Appellate Project and the Appellate Defenders, Inc.

I am hopeful (though not really optimistic) that I will be able to keep on top of the state story when the federal story shifts into high gear again soon.  And I encourage every reader working in state systems and trying to deal with Blakely to help by sending me information and documents of interest.