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Marquette Law Review

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In this Article, I look at the theoretical implications of the United States Supreme Court‘s recent contradictory sentencing cases, and I then examine how they are playing out in practice at the state level. Though Booker purports to follow, not repudiate, Blakely, its view of the role of appellate courts is wholly inconsistent with Blakely‘s view. Many states have sidestepped this contradiction by simply following Blakely and ignoring the option laid out in Booker. But at least three states have chosen to pass through the door opened by Booker. Their experiences allow us to examine the implications of Booker and Blakely for state sentencing outcomes and for appellate review in a post-Booker world more generally. The results indicate that, by and large, Booker is a failure. Despite its drafters‘ intentions, Booker does not meaningfully revitalize appellate review, but only reintroduces it in a rarely used form—and does so in a deeply illogical way.