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Abstract

This article reviews the Blakely decision and the Washington Legislature's response in S.B. 5477. Part II discusses the problem that Blakely created for Washington's sentencing guidelines system. Part III analyzes the judicial advisory and bifurcated trial proposals and explains why Washington wisely adopted the bifurcated trial approach. Part IV identifies key issues that are raised by using a bifurcated trial and analyzes how S.B. 5477 addresses, or fails to address, those issues. Finally, Part V concludes by suggesting that the legislature should have provided for the following in its bill responding to the Blakely decision: a provision allowing bifurcation for all trials with an aggravating factor; a provision allowing the prosecution to amend the initial charge with additional factors if the majority of evidence that supports a new aggravating factor emerges at trial; a provision allowing judges to order bifurcation when the evidence would not have been admissible pre-Blakely and when justice so requires; and, a provision that requires courts to apply the Washington Rules of Evidence to both phases of a bifurcated trial.