Pondering the state Blakely pipeline

Picking up on my post here about all the Booker-inspired GVRs, Michael Ausbrook at INCourts notes here that he can only find one Blakely-inspired GVR (the Dilts case from Oregon).  That interesting discovery has me thinking more broadly about the pace and pattern of sentencing litigation in the state courts and about when and how the Supreme Court will consider state Blakely issues on the merits .

First, it is interesting that, nearly nine months since Blakely, less than half of the states struggling with major Blakely issues have had their state supreme courts weigh in.  My own notes show major Blakely rulings from state supreme courts only in Arizona (Brown), Indiana (Smylie), Minnesota (Shattuck), and Oregon (Dilts), and these rulings often punted as many issues as they resolved.   Meanwhile, we are still awaiting serious high court Blakely input in California, Colorado, New Jersey, New Mexico, North Carolina, Ohio and Tennessee.

Second, it bears noting that there are some broad and common Blakely issues of concern to many states (e.g., Blakely‘s applicability to consecutive sentencing), and a number of narrow and unique Blakely issues of concern only to particular states (e.g., Blakely‘s applicability to Ohio’s “worst form of the offense” enhancement).  Also, there are a range of Blakely remedy/pipeline issues that implicate constitutional provisions like double jeopardy and due process.  Whether, when and how the Supreme Court will take up these “second-generation” Blakely issues from the states should be an interesting story for many years to come.