The fall-out from the Supreme Court's explosive June ruling in Blakely v. Washington, which threatens to invalidate the 17-year-old federal sentencing structure, came back to the Court Monday as the nine justices heard oral arguments in two cases seeking to apply the Blakely decision to the federal sentencing system.
In Blakely, the Supreme Court held that longer prison sentences for criminal defendants must be based on facts found by a jury -- not the presiding judge. But the federal sentencing system does just that: It relies on juries only to find guilt or innocence, but allows judges to increase sentences based on findings of fact never presented to, or even rejected by, the jury.
The Monday hearing was an emergency expedited appeal, accepted by the Supreme Court after the federal system fell into chaos in the wake of the Blakely decision. Some federal judges around the country did not wait for the Supreme Court, but instead began using Blakely to hand out lesser sentences. Others handed out dual sentences, one based on Blakely, one not. Others have deferred sentencing until the issue is settled.
At immediate issue are the prison sentences of the more than 60,000 people sentenced in the federal courts each year, the majority of them drug offenders. Under the old rules, drug offenders could see their sentences increased if judges found the amount of drugs involved exceeded certain benchmarks. According to the US Sentencing Commission, judges have boosted sentences in that fashion in 44% of all federal cases in 2002.
While the justices expressed concern over how juries might handle the complicated fact-finding necessary to impose sentences and how the federal justice system could re-jigger itself to fit with Blakely, observers believe the Supreme Court will indeed rule the current federal sentencing system unconstitutional.
"It seems almost a certainty that Blakely will be applied to the federal guidelines," Douglas Berman, a professor of law at Ohio State University told the Wall Street Journal. "There was nothing said that suggested that any of the justices in the Blakely majority thought otherwise."
"The guidelines as we know them are very likely to be found unconstitutional," agreed Frank Bowman, an Indiana University law professor who testified in Congress about the sentencing dilemma. "The big question is what they do about that, whether or not the guidelines have to be struck down completely, whether they can be applied in part, whether they become advisory."
"Major change is coming one way or another," said Ron Weich, a former counsel to the Senate Judiciary Committee. "There is enough opinion that the system is broken... there will be major reform. A very salutary effect of Blakely has been to air a lot of frustrations with the system that has now burst into public view."