Handling Aggravating Facts after Blakely: Findings from Five Presumptive-guidelines States

Abstract

This Article reveals how five states with presumptive (binding) sentencing guidelines have implemented the right announced in Blakely v. Washington to a jury finding of aggravating facts allowing upward departures from the presumptive range. Using data provided by the sentencing commissions and courts in Kansas, Minnesota, North Carolina, Oregon, and Washington, as well as information from more than 2,200 docket sheets, the study discloses how upward departures are used in plea bargaining, sometimes undercutting policy goals; how often aggravating facts are tried and by whom; common types of aggravating facts; and the remarkably different, sometimes controversial interpretations of Blakely and Alleyne v. United States that frame each state’s practice. This new information is essential for any evaluation of presumptive sentencing guidelines systems or the appropriate scope of the doctrine established in Apprendi v. New Jersey.

Keywords: Apprendi, Blakely, Guidelines, Sentencing, Jury, plea bargaining

JEL Classification: K14, K19