« OK Blakely insights | Main | Living with severed federal guidelines »

October 18, 2004

More inside-the-beltway Blakely negativity

The Washington Post has this editorial today which assails the Supreme Court's "reckless decision in Blakely v. Washington," calls the decision only "superficially attractive," and asserts that "[a]ny system that could realistically replace the guidelines is likely to be far worse from a civil liberties point of view."

As I have noted before, such pessimism about the post-Blakely future of federal sentencing seems endemic to the inside-the-beltway crowd. Though I will concede that I may suffer from an ivory-tower optimism, what troubles me most about such pessimism is (1) the failure to recognize or acknowledge how bad the current federal sentencing system is right now, and (2) the sharp criticism directed toward the Supreme Court because of fear Congress will be an irresponsible sentencing institution.

First, recall that the current system increased defendant Mohamad Hammoud's sentence from less than 5 years to 155 years based on based on a judge's preponderance finding of involvement in "terrorism" supported by the testimony of a single questionable informant who was, according to Judge Gregory, "described throughout the trial as untrustworthy, manipulative, a liar and an exaggerator" (basic details here). I am not sure how a system that raises Hammoud's sentence 150 years in this way could become "far worse from a civil liberties point of view" because the Supreme Court is to extend defendants more rights to contest these sorts of findings.

Of course, this "things will get worse" criticism started with the dissents of Justices O'Connor and Breyer in Blakely, and I have heard it echoed many times over the last four months. But I keep noticing that it is mostly prosecutors and former prosecutors who are making this assertion, while defense attorneys are essentially saying in response "we will take our chances." I have thus come to describe such criticism of Blakely, especially when made by prosecutors and former prosecutors, as "pernicious paternalism." Tellingly, Justice Scalia comically rebuffed such arguments in Blakely by stating that it was "hard to believe that the National Association of Criminal Defense Lawyers was somehow duped into arguing for the wrong side," and also by noting that the "only authority asking that defendants be protected from Apprendi is an article written not by a criminal defense lawyer but by a law professor and former prosecutor."

Second, it bears repeating that there is absolutely nothing inherent in Blakely which requires legislatures or sentencing commissions to make sentencing systems "far worse from a civil liberties point of view." (A post here sought to highlight the mistake of viewing the issue in Blakely as about all of sentencing reform.) Though I am, like others, concerned that Congress will react rashly to the ruling in Booker and Fanfan, that is a reason to criticize Congress not the High Court.

Congress reacted negatively to Miranda which gave defendants more rights against the police and states reacted negatively to Furman which gave defendants more rights in the administration of the death penalty, and many other landmark decisions of criminal procedure could be questioned if our standard was "will legislatures be happy and react well to a decision extending rights to criminal defendants." But that is why the Supreme Court's job is simply to interpret the Constitution, not to try to guess whether the reactions of other branches and institutions will be sound or suspect.

Indeed, we are in this big Blakely mess in large part because the Supreme Court in the arena of sentencing reform has for too long been far too willing to trust other institutions to protect defendants' rights at sentencing. If defendants' procedural rights had been well-respected throughout the development of sentencing reforms, Blakely would have been a blip rather than a bombshell.

October 18, 2004 at 08:55 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference More inside-the-beltway Blakely negativity:


I submit the Federal Sentencing Guidelines can be rescued and made "Blakely proof" by a simple recission of the conviction-streching Section 1B1.3---Relevant Conduct. One would be left with a true offense of conviction system(by jury trial or by stipulation)
Chapter 3 provisions could remain as they are the type of aggravating or mitigating factors that Courts have traditionally considered since the beginning of the Republic. It is difficult to see how the Framers would be offended by the "fringe-type" adjustments available in this section. Chapter 4 would also remain unscathed since its underpinnings are based on prior record factors.

Posted by: M.J. | Oct 18, 2004 12:48:18 PM


Your solution wouldn't work. If you scratch relevant conduct completely out of the guidelines many of the Chapter 3 enhancments could not apply. For example a defendant pleds only to bank robbery. Nothing else. However, the evidence indicates that after the robbery he led police on a high speed chase through the city, endangering the lives of many pedistrians. Reckless endangerment is a Chapt. 3 enhancement. Holding a defendant accountable for that reckless endangerment in my example requires the use of relevant conduct. The applicable relevant conduct section that would apply in this example is that the defendant is to be held responsible for the acts he committed during the commission of the offense of conviction, in preparation for that offense, or IN THE COURSE OF ATTEMPTING TO AVOID DETECTION OR RESPONSIBILITY FOR THAT OFFENSE. Furthermore, many of the specific offense characteristices in Chapter 2, as well as cross references, are dependent upon relevant conduct for their application. Additional Chapter 3 enhancements that may not be applied if relevant conduct was scratched include, restraint of victim, use of body armor in drug trafficking crimes and crimes of violence, using a minor to commit a crime and obstruction of justice.

I think most people are upset primarily with what is viewed as the "expanded relevant conduct" provision. That provision reflects that a defendant can be held responsible for all acts that were part of the same course of conduct or commons scheme or plan as the offense of conviction. This is the provision used to include drug amounts from transactions that a defendant has not stipulated to.

Posted by: steve | Oct 18, 2004 3:21:38 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB