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June 25, 2004

Sentencing Guidelines are dead! Long live Sentencing Guidelines!

The Supreme Court's decision in Blakely seems to mean that the standard operating procedures for most sentencing guideline systems --- including those of the federal sentencing guidelines --- are no longer constitutionally sound. But, despite Justice O'Connor's ominous statement that "[o]ver 20 years of sentencing reform are all but lost," I do not think the only real options are to return to the dark ages of unfettered judicial sentencing discretion or intricate systems of determinate sentencing that prosecutors essentially control through plea bargaining. Rather, I think it is quite possible to build a sound and sensible structured sentencing system that accords with that new constitutional requirements of Blakely (whatever they are) and that also achieves many of the important policy goals pursued through modern guideline reform efforts.

How? A system of relatively simple offense guidelines --- starting with a modified charge-offense approach and adding only a few very basic and general categories of aggravators (which would be subject to the Blakely rule) --- could be both workable and effective. And jurisdictions worried that their current guideline systems have been hit with a Blakely wrecking ball could quickly recast their systems along these lines, but only if their sentencing commissions take a bold and active leadership role in this post-Blakely world. I am very eager to see if, and how, sentencing commissions step up to the plate. They have never been needed more than now.

To paraphrase the dramatic voice-over from the TV classic The Six Million Dollar Man:

We can rebuild [the guidelines]. We have the technology. We have the capability to make the world's first [constitutional guidelines]... Better than [they were] before. Better . . . stronger . . . [fairer].

June 25, 2004 at 12:43 AM | Permalink


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Doug, I don't see how Blakely has any meaningful impact on the U.S. Sentencing Guidelines at all. I read Scalia's opinion as consistent with the views of the plurality (of which Scalia was a member)in Harris v. U.S., which emphasized that Apprendi only applies to those facts that increase the defendant's penalty beyond the prescribed statutory maximum. This reading is consistent with Scalia's language at p. 7 of Blakely characterizing the 53-month maximum of the standard range under the Washington guidelines as a "statutory maximum." It also is consistent with Scalia's insistence at p.8 that the Blakely case is distinguishable from McMillan v. Penn. & Williams v. N.Y. Finally, it is consistent with Scalia's emphasis on the role of the statutory maximum as a legal authorization of a range of punishment, providing notice to potential offenders of their maximum sentencing exposure. (Note the clarifying burglary hypos at p. 13 of the opinion). If this is correct, Blakely merely reaffirms the conceptual approach of Harris, and the outcome of the case is a function of the idiosyncracies of the Washington scheme (or Scalia's idiosyncratic reading of the Washington scheme -- I don't have an intimate familiarity with the Washington guidelines, but it does seem odd to characterize as the "statutory maximum" the 53-month maximum of the standard range, rather than the 10-year class B felony limit. Nevertheless, this appears to be Scalia's understanding of the Washington scheme, and based on this understanding, the Washington guidelines are meaningfully different from the federal scheme. I note that the Petitioner's Brief at p. 23 & n.6 emphasizes this distinction).

I admit that this reading is hard to square with the hysterical tone of O'Connor's dissent. Also, Scalia's terse reference to the inapplicability of Blakely to the federal guidelines in fn 9 is a bit odd. It would have been easy to expressly invoke and reaffirm Harris, but Scalia does not do so, which may feed the dissenters' paranoia, especially given that the other 4 members of the Blakely majority articulated in the Harris dissent the view that any fact changing the applicable punishment range is subject to Apprendi protections (essentially providing 4 votes in favor of tossing the Guidelines).

Nevertheless, unless Scalia has changed his views of the scope of Apprendi since Harris, Blakely is no big deal, and I see no clear indication that Scalia has (yet)changed his views.

Posted by: Barry L. Johnson | Jun 25, 2004 6:51:03 PM

Barry, for various reasons, I might like to be able to agree with your reading (and might even hope lower courts could, too). But wouldn't O'Connor, Kennedy and especially Breyer have suggested this reading if they thought Blakely was no more than Harris + 1?

I'm sure lots of AUSA's would like you to write an amicus brief explaing how Blakely has no impact on the USSG, and I'd also like you to write this up for the Federal Sentencing Reporter.

Posted by: Doug Berman | Jun 25, 2004 9:45:50 PM

Even if you're correct about the applicability of Blakely to the USSG, I'm not sure that it will have a particularly big impact. After all, the language of Blakely is very much about preserving the defendant's rights at trial. And no one goes to trial these days anyway.

Isn't it possible that some sort of two-tier system would be adopted? For the 96% who elect to plead guilty, the USSG would still work just fine, as they have waived their 6th amendment jury trial rights. For the <4% who go to trial, some sort of system like you suggest could work. Or, for that matter, the court could just ask the jury for findings on each potential factor increasing the sentence.

Posted by: Kaimi | Jun 26, 2004 10:42:55 AM

I should have been more clear -- for guilty pleas, this does require the defendant to admit each relevant factor, and that will of course affect the plea negotiation. But this kind of detailed breakdown gets done in many pleas anyway -- prosecutors and defendants agree on a plea, and the plea agreement may say that it will probably give a 27 to 33 month sentence, etc. Prosecutors, I would guess, will just require a full breakdown of factors in the plea, and will continue to use acceptance of responsibility as a weapon to coerce defendants to cooperate with the new requirement.

Blakely prevents the judge from upward departing based on factors not admitted in the plea (which is exactly what happened in Blakely), but doesn't seem to prevent run-of-the-mill sentencing using factors that increase the sentence, so long as the defendant agrees to them.

It will change the balance of the game somewhat -- you can decide to take the 3 point acceptance of responsibility, versus take your chances that the jury will get confused about special findings and not find that you used a firearm. But I don't know that it requires a complete rewrite -- except for potentially those who go to trial.

Posted by: Kaimi | Jun 26, 2004 11:27:24 AM

first, doug, this site is (shit, you know it), great.

kami, on the issue of the potential impact on plea agreements, i agree (as a fed crim def atty limited to sentencing and an 'academic'), that the effect of Blakely, if applied fed, would be marginal for your reasons.

however, i hate using plea agreements and do so reluctantly only when so clearly in my clients interest.

but when the AUSA gives nothing, really nothing, (did you ever practice in the southern district of florida?) the defense must vigorously put the government to its burdens (recip to defts).

i love pleading open (absent statutory.guideline imperatives from the indictment that enhance sent by operation of law) but plead guilty to a factual basis containing elements of offense for the sufficient for rule 11. each judge, of course, is different (i cringe when some demand that my cliednt state, in her own words, what she 'did' (in a complex case typically with outcome determinative sentecning factors) so ther are a multitude of intangible factors in practice and application

but look for a posting here i just completed on juxtapostion of blakely on the aba kennedy comm report

benson weintraub

IT DRIVES THE GOVT CRAZY B/C THEIR NOT IN CONTROL. of course the extent of process due-- evidentiary hearing-- in juge's discretion, permits cross examination of witness in fair proceedings

absent right to jury (waived at plea) but queury:
consider those odious cases that tend to suggest that sent, esp now, is part of the 'trial,' mosts circuits that have addressed the issue have held that the rt to a SPEEDY TRIAL extends to the sentecning phase. See e.g., us v. yelverton, 197 F.3d 535, 539(DC Cir 1999); us v Abouu-Kassem, 78 F,3d 161, 167 (5th Cir 1999); etc etxc

"No Circuit has held that a right to a speedy trial does not apply at this phase." us v. nelson-ridriguez, 319 F.3d 12, 60 (1st Cir. 2003).

of course this is all in reliance upon dicta the S Ct assumed without deciding that the sentence is part of the trial for purposes of the sixth aMENDMENT." POLLARD V. US, 352 US 361 (1957)

Just somethin else to ponder (bearing in mind that despite the dictal nicieties no sentence has ever been vacated on the basis of the 'speedy sentecning' cllaim

Posted by: Benson Weintraub | Jun 26, 2004 5:47:33 PM

Rather, I think it is quite possible to
build a sound and sensible structured
sentencing system that accords with that
new constitutional requirements of Blakely

Posted by: Medic Blog | Mar 14, 2011 10:07:25 AM

permits cross examination of witness in fair proceedings

Posted by: Robe de Cocktail Pas Cher | Dec 12, 2012 1:11:37 AM

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