Where Are We Going, Where Did We Come from: Why the Federal Sentencing Guidelines Were Invalidated and the Consequences for State Sentencing Schemes
![handle is hein.journals/avemar4 and id is 257 raw text is: WHERE ARE WE GOING, WHERE DID WE COME
FROM: WHY THE FEDERAL SENTENCING
GUIDELINES WERE INVALIDATED AND THE
CONSEQUENCES FOR STATE SENTENCING
SCHEMES
Kathleen H. Morkes'
In Blakely v. Washington,1 the Supreme Court held that the State
of Washington's determinate sentencing scheme violated the Sixth
Amendment's guarantee of a jury trial. The Court's decision in
Blakely was described as an earthquake which has shaken the
foundation of structured sentencing reforms.2 Before the 1970s,
sentencing was largely unregulated, and judges possessed almost
complete discretion to determine the length of a defendant's
imprisonment.3 While the Blakely Court emphasized that it was
addressing only the constitutionality of Washington's sentencing
scheme,4 the Court's reasoning suggested that judges can consider
only facts found by a jury to increase a defendant's sentence beyond
f Kathleen H. Morkes is a third year law student at Ave Maria School of Law, J.D.
anticipated May 2006. I would like to thank Professor Philip Pucillo for his advice, patience, and
humor. I would also like to thank my sister, Christy Baker, for the idea to write this article and
for all her support.
1. 542 U.S. 296 (2004).
2. Douglas A. Berman, Conceptualizing Blakely, 17 FED. SENTENCING REP. 89, 94 n.2
(2004). See also Senate, Judges Urge Blakely Redux, N.Y. L.J., July 26, 2004, at 2 (citing Justice
O'Connor's comment to the Ninth Circuit's annual conference that the case resembled a
category ten earthquake).
3. Douglas A. Berman, Examining the Blakely Earthquake and its Aftershocks, 16 FED.
SENTENCING REP. 307 (2004) [hereinafter Berman, Examining Blakely]. See also David Boerner &
Roxanne Lieb, Sentencing Reform in the Other Washington, 28 CRIME AND JUST. 71, 73 (2001)
(Judges were authorized to choose between prison and probation with few exceptions, subject
only to review for abuse of discretion.).
4. Blakely, 542 U.S. at 308 (This case is not about whether determinate sentencing is
constitutional, only about how it can be implemented in a way that respects the Sixth
Amendment.). The Court also noted that it was not considering the Federal Guidelines in its
decision, id. at 305 n.9, and distinguished indeterminate sentencing from determinate
sentencing. Id. at 309.](ViewImageLocal?handle=hein.journals/avemar4&div=13&collection=&method=preview&ext=.png&size=3)
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