Maryland’s developing Blakely fix

Because Maryland has an advisory guideline system, I did not think that Blakely could make the Old Line State crabby.  But I have recently been informed that two bills, which are designed to convert some statutory penalty enhancements into offense elements, have been making their way around the Maryland legislature. 

This Fiscal and Policy Note provides background on the Maryland House bill.  Here are some explanatory highlights:

Maryland has a largely indeterminate sentencing structure that features, in most instances, only a maximum statutory sentence.  While Maryland does have a sentencing guideline system to try to provide greater uniformity of sentencing for offenses, it is a discretionary system rather than mandatory and is usually not based on a finding of additional facts to determine the length of sentence.

However, Maryland does have a handful of statutory crimes that provide for enhanced penalties based on the existence of certain facts beyond the elements of the underlying crime.  The committee has recommended the enactment of legislation during the 2005 legislative session to correct this apparent defect under Blakely and Apprendi by repealing the factual penalty enhancement in the penalty provisions and to place the factual circumstance that leads to the increased penalty into the factual elements of the underlying offense to be charged as its own, separate, new offense.