State Sentencing After Blakeley

Sentencing law has been in flux in recent years. Professors Douglas Berman (Ohio State) and Steven L. Chanenson (Villanova) recommend "robust state sentencing commissions":

Soon after the Supreme Court in Blakely v. Washington declared certain judicial fact-finding within a state sentencing guideline system unconstitutional, Justice O’Connor described the Court’s decision as a “Number 10 earthquake.” But two years after the Blakely ruling, the case’s broader impact and meaning for state criminal justice systems around the country has been largely overshadowed by developments in the federal sentencing system. Nevertheless, this is an exciting time for state sentencing. By granting review in yet another state sentencing case, California v. Cunningham, this past spring, the Supreme Court brings state issues to the national stage once more.

State courts handle many more criminal cases than the federal courts. State sentencing procedures touch the lives of many more defendants, victims and witnesses than the federal sentencing system. Yet, these realities often get lost in all the attention paid to the federal sentencing system in the era of the United States Sentencing Guidelines, perhaps because the federal system is in everyone’s backyard whether that backyard is in Manhattan or Montana. Especially in the academic world, there is seemingly endless interest in federal sentencing law and practices, but precious little discussion of state sentencing reforms generally or of developments in particular states.

The direct and indirect impact of Apprendi and especially Blakely in the states is a rich and dynamic story, with many facets and lessons that should not be overlooked. The doctrinal uncertainty and confusion produced by Blakely and Booker makes it dangerously easy for jurisdictions to be concerned primarily with technical problems in particular sentencing laws rather than with broader reform issues. But the Supreme Court’s coming work in Cunningham, like Blakely before it, should motivate state legislatures, courts, and sentencing commissions to reexamine and improve their sentencing systems.

In this Commentary – which serves as the introduction to a broader symposium on state sentencing after Blakely – we argue in favor of robust state sentencing commissions as part of that reexamination and improvement. Creating and empowering a sentencing commission closes few, if any, substantive options for state sentencing systems. The resulting sentences urged by a sentencing commission can be comparatively high and tightly controlled by a central authority. In contrast, sentences can also be set relatively low and sentencing decisions can be left comparatively unencumbered by binding guidance. A pro-commission view is a process-oriented recommendation with few, if any, inherent substantive sentencing consequences. It does, however, encourage much-needed rationality and transparency in sentencing.

Douglas A. Berman and Steven L. Chanenson, The Real (Sentencing) World: State Sentencing in the Post-Blakely Era (November 2006). Villanova University Legal Working Paper Series. Villanova University School of Law Working Paper Series. Working Paper 69, 4 Ohio St. J. Crim. L. 27 (2006).