Booker and Blakely Issues are Not Dead

Reports of the death of Blakely and Booker in Michigan are greatly exagerated. After the Michigan Supreme Court’s ruling in People v. Drohan, 475 Mich. 140, 715 NW2d 778 (2006) , many practitioners are now regarding the Blakely/Booker issue as “dead” in Michigan. ( Blakely v. Washington, 542 U.S. 296; 124 S Ct 2531; 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. 220; 125 S Ct 738; 160 L.Ed.2d 621 (2005)). In fact, the issue is far from dead; practitioners should continue to raise these issues.

First, the Michigan Supreme Court has acknowledged that indeterminate sanction cases are still subject to a potential Blakley/Booker challenge. In the post-Drohan ruling of People v Axley, Supreme Court No. 131108 four members of the Court acknowledged that this issue was still open. Justices Young and Corrigan stated that Axley was not the appropriate case to consider this issue. Justices Cavanaugh and Kelly stated that the would hear the case and Justice Markman wrote:

I dissent and would instead remand this case to the Court of Appeals for consideration as on leave granted. This case squarely raises the question whether, and to what extent, the United States Supreme Court’s decision in Blakely v Washington, 542US 296 (2004), applies to Michigan’s intermediate sentencing guidelines scheme. MCL 769.34(4)(a). The trial court based its sentencing departure on facts that were not part of defendant’s criminal history, admitted by defendant, or proven to a jury beyond a reasonable doubt. Thus, this case presents an appropriate vehicle for determining whether, when the guidelines call for an intermediate sanction, Blakely precludes the imposition of a prison sentence based on such other facts.

Second, this week, Cunningham v. California was argued before the United States Supreme Court. Here is a link to the the Oral argument transcript . According to the summary of the oral arguments on the SCOTUS blog, the Court may well use this case as an opportunity to rule broadly on state guideline sentencing systems generallly. Professor Berman’s blog reaches a similar conclusion.