Who wins from a Booker remedy? It depends.

As detailed in media reports, Ohio prosecutors are celebrating and Ohio defense attorneys are lamenting the Ohio Supreme Court’s big Blakely decision in Foster (basics here, commentary here), which decided to “Booker-ize” Ohio’s sentencing laws by severing Ohio’s mandatory sentencing requirements for enhanced sentences.  Those familiar with only the federal sentencing system might be surprised by these reactions, since in the federal system it is prosecutors leading the charge for some sort of Booker fix.  But the Ohio realities show yet again that Blakely, Booker and structured sentencing developments are always full of nuance concerning sentencing doctrines and practices.

In the federal system, prosecutors favor having the guidelines mandatory because the federal guidelines typically drive sentences up through the application of an array of sentencing enhancements.  In contrast, Ohio’s structured sentencing rules had operated to keep sentences down because judges had to give low sentences unless they made certain types of particularized findings.  Eliminating guideline mandates in the federal system gives judges more leeway to be lenient, but eliminating structured sentencing rules in Ohio gives judges more leeway to be harsh.

Of course, as Booker has shown for the federal system, a major Supreme Court ruling serves as just another chapter in an always evolving sentencing story.  The ultimate impact of Blakely and Foster in Ohio will be determined by how other Ohio institutions and sentencing players — the Ohio Criminal Sentencing Commission, the Ohio legislature, lower court judges and prosecutors and defense attorneys — respond to the Foster ruling.