In an opinion handed down June 23, the US Supreme Court has thrown the federal sentencing system into a shambles. In deciding Blakely v. Washington, the court threw out a state sentencing structure that allowed judges to increase sentences based on facts that were never proven before a jury, but the ruling also appears to draw a direct bead on similar schemes in at least nine other states and, most significantly, the federal sentencing guidelines system in place since 1987. The reverberations have already begun this week, as federal judges laid aside the guidelines to grant lower sentences. Most significantly, a federal judge in Utah Tuesday used the Blakely decision to declare the federal guidelines unconstitutional.
In so doing, the court applied a rule in had first enunciated four years ago in Apprendi v. New Jersey, when it struck down a harsher prison sentence for a defendant because a judge -- not a jury -- found that Apprendi had committed a hate crime (http://stopthedrugwar.org/chronicle/147/fedstremble.shtml). Then, Justice Antonin Scalia, writing for the majority, wrote: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."
In Blakely, Scalia noted that, "When a judge inflicts a punishment that the jury's verdict alone does not allow... the judge exceeds his proper authority." The Constitution gives defendants a right to trial by a jury, and "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment," wrote Scalia for the 5-4 majority. In both Apprendi and Blakely, Scalia, and fellow justices John Paul Stevens, David H. Souter, Clarence Thomas and Ruth Bader Ginsburg formed the majority, while Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy, Stephen G. Breyer and Sandra Day O'Connor dissented.
"The implications of this are absolutely enormous," said Mark Allenbaugh, a nationally known authority on federal and state sentencing law and current chair of the Federal Sentencing Guidelines Task Force for the DC chapter of the Federal Bar Association.
"This is an opportunity to redo what was started about 20 years ago but went off in the wrong direction. Sentencing reform and the guidelines never had a chance because of the mandatory minimums," he told DRCNet. "They mucked up the system and made the guidelines too complex and unwieldy. This system is a mess, and this is a good opportunity for the Congress to throw out the old system and get a new system in place, one that upholds the goal of fairness, but without the draconian sentencing laws."
"On the Richter scale, this is as high as it gets," concurred Marc Mauer, executive director of the Sentencing Project (http://www.sentencingproject.org), a Washington, DC-based organization seeking to reduce the nation's reliance on incarceration. "Coming within a few days of the American Bar Association's Kennedy Commission report (http://stopthedrugwar.org/chronicle/343/aba.shtml), this is a very strong statement for sentencing reform. The mix of high-level attention from both the court and the legal community makes this an exciting time like we haven't seen for a long time."
"Beyond a doubt, today's decision in Blakely spells the end of sentencing guidelines -- as we know them," said Barry Scheck, president-elect of the National Association of Criminal Defense Lawyers. "The decision does not represent a step backward from the goal of sentencing reform, but a great leap forward, because it stands for the proposition that no defendant in a US court will be punished for an unproven crime."
"On first impression, it was truly earth shattering," said Roger Goodman of the King County Bar Association in Seattle. "You never expect the Berlin Wall to fall. But as I think about it, when applied to drug sentencing in the states, it is an intermediate, remedial step, it softens the edges a little. In many states, including Washington, the legislatures understand the need for treatment and give the judge discretion on drug sentencing. But this could have a huge fiscal impact. Here in Washington, there are probably 2,500 to 3,000 cases that will need resentencing."
The impact at the federal level will be much more significant, said Goodman. "Drug sentences are very structured at the federal level now," he said. "There is a great potential for reform of drug sentences at the federal level, and that would be most welcome."
The reaction to Blakely has been swift in coming, and is only beginning. Federal prosecutors in Pennsylvania requested a hold on sentencing of convicted defendants the day after the ruling appeared.
"We just felt that the language of the opinion had potentially broad implications," said Assistant US Attorney Timothy R. Rice, in a statement announcing that his office was asking that sentencing could be postponed until prosecutors got guidance from Attorney General John Ashcroft about how to proceed.
Maine US District Court Judge Brock Hornby cut one defendant's sentence from 20 to 6 ½ years and delayed another's sentencing, citing the Supreme Court decision in Blakely. Hornby acknowledged that Blakely had not immediately overturned the federal guidelines, but said it was inevitable. "I conclude that perhaps the Supreme Court can find a way to explain away Blakely in its language and its reasoning, but as a trial judge and a sentencing judge, I cannot. I must take it as written," he said in an unusual press statement. "I will leave it to higher courts to tell me it does not mean exactly what it says."
But the biggest shock this week was the ruling by conservative Utah US District Court Judge Paul Cassell, who, based on Blakely, ruled the federal sentencing guidelines unconstitutional. (In Boston last week, US 1st District Court Judge William Young issued a similar ruling based on Apprendi, but without the benefit of Blakely, which was handed down three days later. See related story this issue.)
"I take no pleasure in striking down the guidelines today... but the court's fundamental obligation is to uphold the Constitution," Cassell wrote as he departed from the guidelines in a child pornography case sentence hearing. His ruling could have "potentially cataclysmic implications," Cassell noted, but he added that he intends to ignore the guidelines "until the constitutionality... has been definitely resolved by the Supreme Court."
In an interview with the Deseret News Tuesday, Cassell reiterated that the Supreme Court had not ruled on the federal guidelines, but argued that such a holding was implicit in the court's decision and certain to be addressed by the court soon. "Doesn't the rationale also lead to the conclusion that the federal sentencing guidelines are unconstitutional?" Cassell asked. "Isn't it time for the other shoe to drop?"
In her stinging dissent, Justice O'Connor warned direly that the ruling was a dagger aimed directly at the federal guidelines and would be "a disaster." More than 272,000 federal defendants had been sentenced since Apprendi alone, she noted, adding that "chaos" would result as those defendants pursued appeals. "What I have feared most has now come to pass," O'Connor lamented. "Over 20 years of sentencing reform are all but lost, and tens of thousands of criminal judgments are in jeopardy."
"Justice O'Connor indicated that she believes that everybody sentenced at the federal level since Apprendi in 2000 will be entitled to appeal for resentencing," said sentencing expert Allenbaugh. "I think she's right. I am anticipating a flood of habeas motions in district courts all over the place. I think there will be more trials and fewer plea bargains; currently in the federal system, we're at about 96% plea bargains, and that could drop to 70%. And you may end up seeing fewer federal prosecutions. The feds will be more selective, knowing that they have less leverage at the bargaining stage. If you don't see plea bargain rates go down, you will see prosecution rates go down. Given our overtaxed system, there is no way it can cope unless something gives."
But wait, there's more. Blakely should also apply to mandatory minimums, said Allenbaugh. "I don't see how it can not apply," he said. "Everybody who went to trial and was found guilty and sentenced with the jury making a finding of fact or who made a plea agreement and was sentenced to a mandatory minimum -- I think they're entitled to walk."
"It must have been chaos in the courts of the land this week," said Nora Callahan, executive director of the November Coalition (http://www.november.org), a drug reform group focused on freeing the prisoners of the drug war. "They must be asking what do we do know? Prosecutors can't tell the judges what the sentences are going to be anymore. All of the analysis has been about the judges, but what happened in Blakely is that prosecutors lost the ability to tell judges how it will go down.
"I was against sentencing guidelines from the beginning, because they were a fraud," said Callahan. "They aren't guidelines, they are a rigid mandate. But all that changed on Friday. But what about those prisoners sentenced before Apprendi?" she asked. "If it is not going to be retroactive, what do we do? Simultaneous protests? Postcard campaigns? If there is no movement toward retroactivity by September, there will be big stuff happening on the outside, and maybe on the inside. Remember what happened when Congress refused to fix the crack penalties. The system blew up. It is time to demand amnesty. At Abu Ghraib when there was scandal, they just let half of them out. If they can do it in Iraq, why not here? Let them out, lift the bans that keep them from getting assistance, good hearted church folk could each take one. Then let's move on to selective enforcement and ending drug prohibition."
In the meantime, legislatures in at least nine states have some work to do re-jiggering their sentencing schemes. And Congress, too, would be well advised to begin preparing to rewrite the federal sentencing laws.
To read the groundbreaking
Supreme Court decision in Blakely v. Washington, visit:
To read Judge Hornby's decision
on cutting sentences post-Blakely, visit:
To read Judge Cassell's decision
finding the federal sentencing guidelines unconstitutional, visit: