A Blakely Festivus for the rest of us

Though I am not planning a full Festivus celebration today, with all of the grand traditions, I am inclined to engage in a little Blakely airing of grievances. 

Of course, first on my list of grievances is the lack of a decision yet in Booker and Fanfan.  I made the mistake of giving thanks last month for a quick decision, but now I am aggrieved that federal and state criminal justice actors are still waiting for desperately needed Blakely clarification and guidance.

Next on my list of grievances is the failure of legal commentators to give Blakely the respect it deserves.  In this post, I previously explained why I thought Blakely might be called the Rodney Dangerfield of Supreme Court decisions, and the “no respect” decision suffered another blow from commentator Edward Lazarus’ FindLaw essay today on “The Most Important Legal Developments of 2004.” Blakely does not get one mention in the essay, even though in less than 6 months the ruling has already led to an expedited Supreme Court case, generated over 1300 on-line lower court appellate rulings, impacted probably tens of thousands of sentencings, and is prompting over a dozen jurisdictions to contemplate changes to current sentencing laws.

My last grievance to air (for now) is on the local front; I want to complain a bit about most Ohio courts working so hard to avoid applying Blakely to Ohio’s sentencing system.  The most recent Ohio Blakely dodge comes this week in State v. Stillman, 2004 WL 2940813, 2004-Ohio-6974 (Ohio App. 5 Dist. Dec. 20, 2004), where the court rules that Blakely essentially has no applicability to Ohio’s sentencing scheme.  As detailed in this helpful recent memo from the Ohio Sentencing Commission, the 8th District Court of Appeals is the only Ohio appellate court to reverse and remand sentences on Blakely grounds, even through judicial fact-finding is central to many Ohio sentencing determinations.

I suppose I can understand what drives Ohio courts to dodge Blakely: as I have previously highlighted, Blakely‘s formal rule could be extremely disruptive for Ohio’s functional sentencing laws (background here and here).  Nevertheless, I think a fair reading of Blakely makes it applicable to various aspects of Ohio’s sentencing system.  In the end, my biggest grievance may be with the Ohio Supreme Court, which thus far has shown no interest in directly addressing Blakely‘s applicability in Ohio.

I probably could go on, but then I might not have energy for the Festivus feats of strength.  But readers are welcome and encouraged to celebrate a Blakely Festivus by sharing their Blakely grievances in the comments.