top of page
  • bennettandbennett

Blakely v. Washington

Lately I’ve been fielding lots of calls from people whose loved ones might be affected by the Supreme Court’s decision in Blakely v. Washington.

In a nutshell, Justice Scalia wrote in Blakely that, under Washington state’s sentencing guidelines, it was unconstitutional for the judge to increase Mr. Blakely’s sentence above the punishment authorized by the facts found by the jury.

The consensus in the federal criminal law community (defense lawyers as well as judges and prosecutors) is that Blakely will apply to invalidate the federal sentencing guidelines (which allow the judge to find things like drug quantity by a preponderance of the evidence, and punish based on these findings).

Of all the circuit courts of appeals that have answered the question, “does Blakely apply to the federal sentencing guidelines?” only the Fifth Circuit has said “no.” In October the U.S. Supreme Court will be hearing arguments on the question, and will likely answer it before the end of the year.

I would guess that 95% of the people in federal prison would, if they could get back into court (that is, present the issue to a judge), benefit from Blakely. The problem at this point is getting back into court.

Most of my callers have family members who have been in prison for a while. The time for them to file a direct appeal (to the circuit court of appeals) and a 2255 (in the trial court) have passed. To file another 2255 (or a late 2255) they need one of two things: (1) newly discovered evidence of actual innocence; or (2) a new rule of constitutional law, made retroactive by the U.S. Supreme Court.

The Supreme Court has not made Blakely retroactive. They may do so. Until then, I think Apprendi and Blakely should be read to redefine “actual innocence” more broadly than “innocence of the charged offense.” Blakely suggests that factors that increase punishment are actually elements of the offense that need to be proven beyond a reasonable doubt. So possession of 15 kilograms of cocaine, for example, is actually a different (greater) offense than possession of 5 kilograms of cocaine.

If there is newly-discovered (in the year before filing the 2255) evidence that the defendant was only responsible for 5 kilograms, rather than 15 kilograms, then he may be actually innocent of the offense for which he was punished (possession of 15 kilograms of cocaine), but still guilty of the lesser offense (possession of 5 kilograms of cocaine). Such newly discovered evidence creates a good argument for a defendant to get back into court on a successor 2255.


Recent Posts

See All

Under section 46.05(a)(3) of the Texas Penal Code, it is a felony to possess, manufacture, transport, repair, or sell a "prohibited weapon," including a chemical dispensing device. Chemical dispensing

What is Online Solicitation of a Minor? Online Solicitation of a Minor is one of two offenses created by sections 33.021(b) and 33.021(c) of the Texas Penal Code: Sec. 33.021. ONLINE SOLICITATION OF

Facing drug-possession charges can be a harrowing experience with potentially severe consequences. To navigate the complex legal system and protect your rights, you'll need a top drug-possession lawye

bottom of page