The Effect of Blakely v. Washington on Upward Departures in a Sentencing Guideline State

Abstract

The Supreme Court's decision in Blakely v. Washington was a landmark decision, ruling that juries must determine facts before judges can increase sentences above the sentencing guideline maximum—known as upward departures. Because one of the purposes of sentencing guidelines was to reduce discretion—and, thereby, unwarranted disparity—it is hypothesized extralegal factors will have less impact on upward departures after Blakely compared to before Blakely. Upward departures and their determinants were analyzed 27 months before and after Blakely, utilizing a disproportionate stratified random sample. Although the likelihood of upward departures was diminished after Blakely , extralegal factors did not incur differential effects. Both age and gender of the defendant were found to have statistically significant effects ( p < .05) before and after Blakely. Although this study is only an explorative step, it is an important step to start addressing any potential effects of this landmark decision on sentencing reform efforts.

Sentencing Departures and Female Defendants: Assessing the Effects of Racial and Ethnic Threat

“…The current study explores a gap in prior research by using the racial and ethnic threat perspective to assess variations in judicial use of upward and downward departures among Black, White, and Latino females. We limit our sample to females because prior studies exploring the use of departures have overwhelmingly focused on men or on comparisons between men and women, which limits the understanding of disparities that potentially exist among females (Iannacchione & Ball, 2008; Kramer & Ulmer, 2002; Spohn & Fornango, 2009). In addition, few studies have used racial or ethnic threat perspectives to account for the way the criminal justice system punishes female offenders.…”