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September 2, 2004

Applying Blakely to the federal sentencing guidelines

There is so much to say about the arguments made by the SG in its merits brief (and by the USSC and the former federal judges in their amicus briefs) that "Blakely does not apply to the Federal Sentencing Guidelines." I suspect many posts (and I hope a lot of comments from readers) will over time allow me and others to think through all the aspects and implications of these arguments. For now, I want to make a few very general comments:

1. After Blakely, it is possible and perhaps helpful to set up a dichotomy between statutory structured sentencing systems like Washington's (which now must grant defendants the (waivable) right to a jury trial on any and all facts which raise the effective maximum sentence) and traditional indeterminate sentencing systems (in which judges have enormous and essentially unfettered discretion to consider (or not consider) any and all facts of interest to the sentencing judge). I find it truly remarkable that the SG and USSC are suggesting, and that a group of former federal judges are expressly stating, that the federal sentencing guidelines "more analogous" to a traditional indeterminate sentencing systems than to Washington's structured sentencing system.

2. Though all the briefs make a game effort at arguing that "Blakely does not apply to the Federal Sentencing Guidelines," I saw precious little argument in the briefs that Blakely should not apply to the FSG. I might find the arguments to distinguish the federal system more compelling if I could fully understand what would be so harmful about defendants having a (waivable) right to a jury trial on facts which raise their effective maximum sentence. I understand that there could be great harm in how Congress or others might respond to defendants having such a right. But I am not sure why a court's interpretation of the scope of individual rights can or should be influenced by the (speculated) response of other institutions to those rights.

3. As I discussed at some length in my analysis of the Sixth Circuit's decision in Koch (details here), many of the arguments put forward to distinguish the federal system structurally would be much more compelling if the federal sentencing guidelines were written by the Judicial Conference of the US — as Professor Kate Stith and Judge Jose Cabranes have recommended in their wonderful book Fear of Judging (at p. 159). But, as the SG's brief concedes at pp. 24-25, the USSC both in design and in operation is far more like, in Justice Scalia's words, a "junior-varisty Congress" than like a Judicial Branch coach. Moreover, as Steve Chanenson has so astutely noted in his recent article, Congress' recent passage of the PROTECT Act has constrained and transformed the USSC to make it more like a "traditional" legislative agency and less like a group of judges making sentencing rules for themselves.

September 2, 2004 at 08:38 AM | Permalink


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Some final comments on the briefing in Booker/Fanfan.
I suggest to the USSC that the distinction between the affirmative action required under the Washington scheme as opposed to the "automatic if no action" provided for in the Sentencing Reform Act is another distinction without a difference. The USSC's argument that the Washington scheme is a legislative enactment and the USSG is not, falls wide of the mark. Assuming that Blakely only applies to legislative enactments, why would not Blakely apply to those portions of the USSG that Congress itself has directly enacted? For example one might look at sections 104 and 504 of the PROTECT Act in which Congress made direct amendments to the Guidelines, e.g., 5K2.0, 5K2.20, 4B1.5, and 2G2.4. Accepting the USSC rationale requires Blakely application to at least those parts of the USSG that Congress itself has either enacted or directed the USSC to enact.
Only the SG brief talked directly about what Blakely really did. Blakely simply expanded or clarified (depending on whose view one takes) the definition of "statutory maximum" as that term was used in Apprendi. Unless the petitioners or amici can convince the Supreme Court that either (1) it didn't really mean it when it said "the maximum that [a judge] may impose without any additional findings" or (2) that the term "statutory maximum" is limited to a direct enactment by a legislative body, but not an indirect enactment, i.e., through an "independent commission" with an automatic effect in the absence of legislative action, Blakely must apply to the USSG.
As to the former, it seems that by denying a rehearing in Blakely, a majority of the Supreme Court is not convinced that, based on the Sixth Amendment, Blakely was incorrectly decided.
The problem with the latter, which is what the USSC argues and is the main point of the SG, is that it exhalts form over substance. That is, it would say to a legislative body, "you can not do this directly without violating the Constitution but you can by indirect action circumvent a Constitutional limitation." This is a proposition that ought to cause one, irrespective of one's views on whether Blakely was rightly or wrongly decided on Consitutional principles, a substantial degree of concern.

Posted by: Thomas J. Yerbich | Sep 2, 2004 6:53:23 PM

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