Federal Sentencing Reporter, Vol. 18, No. 1, pp. 1-6, 2005.


Justice Louis Brandeis famously described the states as laboratories where individual jurisdictions can experiment with various legal strategies. In the wake of Blakley v. Washington, and United States v. Booker those laboratories have been working overtime. Since June 2004, both state legislatures and state courts have grappled with the significance of the United States Supreme Court's treatment of the Sixth Amendment in sentencing. It is unsurprising, given the extraordinary significance and potential reach of Blakely and Booker, that this Herculean task has produced divergent results.

Although there are many potential ways to sort those results, for the purposes of these observations, we have divided them into states of “evolution” and states of “denial.” Evolution states have read Blakely and Booker fairly, accepted that Blakely controls what is permissible within their sentencing regimes, and responded in ways that best fit their circumstances. Still, there are differences in how these jurisdictions have evolved. Many of the states responding to Blakely (particularly those with active sentencing commissions) have retained their more presumptive sentencing systems. Others have followed Booker toward a more advisory system of guiding judicial discretion at sentencing. In contrast, denial states, acting through their state supreme courts, have found ways to repudiate that Blakely even applies to their systems, despite compelling evidence to the contrary. California is probably the most notable of the denial states and, consistent with our views but after these observations went to press, it attracted the Supreme Court’s attention in Cunningham v. California.

We conclude with a look toward the future and a plea for states to strengthen their sentencing commissions.


Criminal Law | Criminal Procedure

Date of this Version

April 2006