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Sentencing Law and Policy
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The state of Blakely in various states

By Douglas Berman
December 28, 2004

This morning’s WSJ article (detailed here) provides a great review of the state of Blakely in the federal system, but I find the state of Blakely in the states an even more interesting and dynamic story.  Indeed, as detailed in some of my recent posts on the topic, the state Blakely story is too fast-moving and dynamic for me to track comprehensively.  (More background here and here and here.)

Fortunately, there other folks covering the Blakely story in particular states, and I can just report and link to their efforts.  Today I have helpful reports on Indiana, North Carolina and Texas.

INDIANA: As noted before here, Indiana’s Blakely story is being well-covered by state lawyers there, and now I see that Michael Ausbrook at INCourts has this post which reviews all the Indiana cases that mention Blakely and their current status.

NORTH CAROLINA: This newpaper article provides a very effective review of the story of Blakely in North Carolina.  The article also details that the a subcommittee of the NC Sentencing and Policy Advisory Commission “has recommended that aggravating factors and some issues related to prior records be submitted to a jury to determine if they exist.”

TEXAS: With great thanks to Scott Henson at Grits for Breakfast, I can provide a link to this terrific research brief from the Texas Senate Research Center reviewing the story of Blakely in Texas.  Here is the astute conclusion of this effective report:

Because Texas does not have the sort of determinate sentencing guidelines used by the State of Washington or the federal government, Blakely will not significantly impact Texas law. However, there are specific statutes in the Code of Criminal Procedure that authorize a judge to make an affirmative finding of fact that may be used to increase the defendant’s punishment, but the statutes are not clear whether this affirmative finding must be based on facts proved beyond a reasonable doubt to the trier of fact. These and any similar statutes could be subject to challenge under Blakely.