Professor Bibas’ latest on Blakely

I just noticed that Professor Stephanos Bibas has posted on the Social Science Research Network an expanded version of his presentation at the Stanford Law School’s Blakely conference last October.  (Background on the Stanford event can be found here and here, and highlights here.)   Entitled “The Blakely Earthquake Exposes the Procedure/Substance Fault Line,” the paper’s abstract and download information can be accessed here.  Here is the full text of the abstract:

This essay, originally presented at the Stanford Law School symposium The Future of American Sentencing: A National Roundtable on Blakely, examines how the Supreme Court’s majority and dissent could look at Blakely in such radically different ways. As the majority sees it, Blakely is a fundamental, ringing vindication of the substantive right to jury trial. On this view, Blakely should be fully retroactive to habeas and for Ex Post Facto purposes.  But the dissent’s view was so different that the two sides were speaking past each other.  On that view, Blakely is a mindless formalism, just another hoop for legislatures to jump through or to evade.

Though I have been the leading critic of the Apprendi/Blakely line of cases, I must give the Supreme Court credit for forcing us to confront and bridge the artificial divide between substantive criminal law and criminal procedure.  What is a crime — is it whatever the legislature labels as a crime?  And why have a distinct sentencing phase, after the guilt phase and run by a different factfinder using looser procedures?  Do these artificial divisions distract us from the moral import and message that our criminal justice system should be sending?

Apprendi and Blakely asked the right questions but gave the wrong answers.  A better approach, I argue, would use not the Fifth and Sixth Amendments but the Eighth Amendment to regulate statutory and guideline penalties equally.