We are guided in this regard by the Supreme Court of the United States, which has employed a distinctly incremental approach to the topic now before us. In Jones v. United States, 526 U.S. 227 (1999), the Court noted its serious constitutional concerns with a federal statute that could be read as allowing stricter criminal punishment on the basis of facts not found by a jury. 526 U.S. at 243 n.6. The holding of the case, however, rested on an interpretation of the statute chosen to avoid such “serious constitutional questions.” Id. at 251-52. One year later, Apprendi turned the Jones concern into a constitutional rule. 530 U.S. at 490. Apprendi, however, declined to overrule the holding in Walton v. Arizona, 497 U.S. 639 (1990), that a judge may find aggravating factors necessary for imposition of the death penalty. Id. at 497. The Court also refused to express an opinion as to whether its holding would affect the Federal Sentencing Guidelines. Id. at 497 n.21. Ring v. Arizona, 536 U.S. 584, 589 (2002), then found Walton “irreconcilable” with Apprendi and overruled Walton. In Blakely, the Court made clear that the rule of Apprendi invalidated a state’s non-capital criminal sentence imposed on the basis of aggravating facts not proved beyond a reasonable doubt to a jury. 124 S. Ct. at 2538. Yet, the Court again refused to express any opinion on the validity of the Federal Sentencing Guidelines, because the Guidelines were not directly at issue. Id. at 2538 n.9. The Court now is considering the validity of the Federal Sentencing Guidelines. See United States v. Booker, 375 F.3d 508 (7th Cir. 2004), cert. granted, 73 U.S.L.W. 3073 (Aug. 2, 2004); Fanfan v. United States, 2004 WL 1723114 (D. Me. June 28, 2004), cert. granted, 73 U.S.L.W. 3073 (Aug. 2, 2004).
The Arizona Attorney General apparently had the grace to concede in its own appeal that Blakely affects Arizona's sentencing scheme (which appears to be similar to, but more structured, than Indiana's). With that concession, the Arizona Supreme Court vacated the Court of Appeals' decision and remanded the case to the trial court to consider every other issue.
With the Booker and Fanfan decisions on the near horizon, it's probably a good idea not to break all the good china at the first opportunity.