The Supreme Court's Decision in Blakely v. Washington:
A Watershed Ruling that will Usher In Much Needed Sentencing Reform

By MARK H. ALLENBAUGH
Tuesday, Jul. 06, 2004

Note: For a prior column taking a different view of the decision, please see a prior column for this site by Sherry Colb. - Ed.

On June 24, in a 5-4 opinion, the Supreme Court decided the case of Blakely v. Washington. It held that "the maximum sentence a judge may impose" is one "solely [based upon] . . . the facts reflected in the jury verdict or admitted by the defendant." (Emphasis in original). In other words, "[w]hen a judge inflicts punishment that the jury's verdict alone does not allow . . . the judge exceeds his proper authority."

The majority in Blakely was made up of an unlikely alliance of Justices--Scalia (the opinion's author), Stevens, Souter, Thomas, and Ginsburg. Few predicted this stunning ruling - which has already dramatically changed the face of sentencing, and will continue to do so for years to come.

On its face, this holding is contrary to the practice in many state courts and in every federal court across the nation. In the federal system, as in many state systems, judges routinely consider evidence outside of the jury's verdict or the plea agreement when applying sentencing guidelines, or imposing mandatory minimum punishments. After Blakely, however, they will no longer be able to do so.

How the Federal Sentencing System Currently Works

To understand how much Blakely will change the federal sentencing system, it's necessary first to explain briefly how the system currently works.

Originally, federal sentencing - like many states' sentencing - relied almost exclusively on the sentencing judge's discretion to pick a sentence between a large range spanning the legislatively-determined minimum to the legislatively-determined maximum. In addition to this arbitrariness, was the fact that whatever sentence was imposed could subsequently be shortened at the discretion of a parole board.

The result was that a person with the same criminal record (or lack thereof) who had committed the same crime, could receive or serve a vastly different sentence based on which judge that person happened to appear before and the make-up of the parole board. And that, as Congress recognized, was very unfair.

That all changed with the creation of the U.S. Sentencing Commission and the Federal Sentencing Guidelines by Congress in 1984. Among other things, parole was abolished, so defendants actually served their full sentences. And since the Guidelines, while judges still choose within a range of possible sentences, the range is much smaller, and it is constrained by the Guidelines themselves.

The good news is that sentences are now much more uniform; the same defendant is apt to get at least very roughly the same sentence no matter what judge he appears before. But for those who care about jury trial rights, there's a lot of bad news, too.

Although the ranges of sentences d now smaller, the judge still must figure out which range is proper for a given defendant. Before the Guidelines, the judge just looked to the minimum and maximum penalties in the statute under which the defendant was convicted and sentenced according to what he or she believed was fair. But after the advent of the Guidelines, everything changed.

Now, the federal sentencing judge is called upon to make a number of findings of fact. While the jury finds guilt, the judge must go far beyond that finding. For example, in a fraud case, he must determine as a matter of fact the amount of fraud involved. And in a case involving a group of criminals, he must determine what role a given defendant played - was he a manager or organizer, or was he closer to a mere flunky?

Some of these decisions are straightforward: If everyone agreed at trial that $10,000 was stolen from a safe, then it's a no-brainer to choose the proper sentencing range. A drug "mule" who simply carries drugs is obviously a flunky; a Mafia boss is obviously a leader.

But some of these decisions are much less straightforward: If testimony differed as to how much money was stolen from the safe, who should be believed? If a former drug mule took on some other tasks, does that make him an "organizer"?

The answers to these more difficult questions can dramatically change a sentence. But, under the Guidelines, it is left to the judge, not a jury to answer them - despite the fact that the Constitution specifically protects the right to a jury trial in criminal cases.

To make matters even worse, under the Guidelines system, the judge deciding on a sentence legally can look at a great deal of evidence the jury had never - and legally could never - have seen because the rules of evidence do not apply at sentencing. Indeed, the judge can look at evidence of a crime with which the defendant was never charged, and even evidence of a crime of which the defendant was acquitted.

Finally, when the judge looks at all this evidence, and makes fact findings based on it, he does not have to follow the same standard the jury did: "beyond a reasonable doubt." He can accept facts if he finds by a mere "preponderance of evidence" - roughly, more likely than not - standard that they are true.

The result of all these rules is that once a defendant has been convicted of or pleaded guilty to at least one count, a whole host of other evidence can come in at sentencing. And this evidence, taken together, may push a defendant's sentence up far, far higher than he may have been expecting.

Indeed, as Justice Scalia's majority opinion in Blakely points out, under such a system, "a judge could sentence a man for committing murder even if the jury convicted him only of illegally possessing the firearm used to commit it--or of making an illegal lane change while fleeing the death scene." Such scenarios led a majority of the Court to find that allowing the judge to make fact findings on his own during sentencing, that were not made by the jury, improperly infringes the constitutional jury right.

One Result of Blakely: Hundreds of Thousands of Resentencings

The Federal Sentencing Guidelines were not themselves before the Court. But since Blakely, at least three federal judges have already ruled that the Guidelines now are unconstitutional - inasmuch as they leave to the judge, and not the jury, the finding of facts that enhance sentences. It seems plain that these rulings are correct, and will be upheld on appeal - if the Department of Justice even bothers to appeal them.

But if the Guidelines are unconstitutional in this respect, how will federal courts now proceed?

Some real-world problems are going to immediately arise. And they will require quick, but well-thought-out, decisions on the part of Congress and the legislatures of many states.

To begin, judges will be overwhelmed, for the criminal caseload will dramatically increase. As Justice O'Connor noted in her dissent in Blakely, there are nearly a quarter-million defendants who may be eligible for resentencing now - and this is just at the federal level.

Doubtless, numerous state defendants will also seek resentencing if their state's system, like the federal system, allowed judicial factfinding to be the basis of sentences.

In short, Blakely has opened the resentencing floodgates. Our courts must be prepared to meet the onslaught quickly.

Another Result of Blakely: A Change in Plea and Trial Dynamics

Of course, Blakely will change not only how great the system's caseload is, but also how it works.

First, let's consider the many, many federal criminal cases that result in plea bargains--approximately 95%. In such cases, the Government now knows it will have to work harder to obtain the same sentences. As a result, defendants now will have more leverage during the plea negotiation stage.

In addition, defendants will be more likely to take a gamble at trial by putting the government to the test. They'll do so because they know that now, the government will not only have to prove guilt to a jury beyond a reasonable doubt, but it will also have to do the same with all the facts that could potentially increase the defendant's sentence.

Trials, of course, are costly endeavors. If more defendants indeed opt for trial, the cost to the government - and the judicial system - will only increase. And it's likely that if the increase is substantial, the already over-burdened judicial system simply will not be able to handle the influx. Consequently, legislatures will have to act quickly to fill judicial vacancies as well create more judgeships.

How Will Blakely Change the Way Sentencing Itself Is Done?

The most direct result of Blakely is that federal judges must change the way they sentence convicted defendants. There seem to be three possible options, consistent with Blakely, as follows:

First, the judge could impose a sentence based precisely on that information - and only that information - contained within the confines of the jury's verdict or the plea agreement. In effect, however, that would mean that the judge could only impose the minimum sentence authorized by the Guidelines or, where applicable, by statute.

This would mean, however, that a defendant who may have been facing 20 years in prison based upon now-irrelevant conduct could get as little as six to twelve months. In fact, that is precisely what happened in the decision of the U.S. District Court for Southern District of West Virginia in United States v. Shamblin last week.

Second, the judge could bifurcate all criminal trials into guilt and penalty phases - as is currently done in death penalty cases. The guilt phase would proceed like a normal criminal trial. The penalty phase would ask the jury to find all facts necessary, under the Guidelines, for the judge to impose a sentence in accordance with the Guidelines.

This second option is a logical extension of Blakely. Still, it is quite impractical given the complexity of many sentencing factors; the jury might be asked numerous factual questions at the sentencing phase. Moreover, there is no existing procedure for such "sentencing juries" - so bifurcation will have to wait until such a procedure exists. Nevertheless, a federal judge in New Jersey has decided to devise just such a procedure.

Finally, the third option would be for the judge to treat the Sentencing Guidelines as merely advisory, with no legal effect. The judge could then, in theory, choose any sentence from the statutory minimum, to the statutory maximum, set for the crime of which the defendant was convicted.

On this approach, since the Guidelines wouldn't be law, they presumably also wouldn't be unconstitutional under Blakely. U.S. District Judge Paul Cassell of the United States District Court for the District of Utah chose this option in the recent case of United States v. Croxford.

This may be the most practical approach in the short term. But in the long term, it would only reintroduce the very problems that sentencing guidelines were meant to address: Unfairness when sentences differed based on what judge was handing them down, and uncertainty and unpredictability as to what sentence a defendant would face if convicted or if he pleaded guilty.

Does Blakely Also Mean the End of the U.S. Sentencing Commission?

Blakely may not only mean the end of the Federal Sentencing Guidelines - in their current form, at least - but also the end of the U.S. Sentencing Commission as we know it.

Traditionally, defining crimes and deciding on sentencing ranges has been within Congress's sole purview. But the Sentencing Guidelines changed all that. They were created not by Congress, but by the U.S. Sentencing Commission (although Congress reserves the right to veto any actions of the Commission).

In constitutional law, the non-delegation doctrine holds that Congress cannot give too much of its power away. Some thought that with the Sentencing Commission, it had done just that. But in Mistretta v. United States, the Supreme Court, by a vote of 8-1, held otherwise, and allowed the U.S. Sentencing Commission to stand.

The lone dissenter in Mistretta was Justice Scalia - who accused the Commission of being "a sort of junior-varsity Congress." Now, ironically, by writing the Blakely opinion, Scalia may have dealt the Commission its final blow, wiping out this j.v. team.

Because every sentencing factor now identified by the Commission has become an element of an aggravated offense, the Guidelines spell out actual elements of crimes, something only Congress has the authority to do.

Blakely's Legacy: The Opportunity for Needed Reform

In the world of federal criminal law, the sky is falling - but not a moment too soon. Today on the Hill, Congress is conducting a hastily-convened hearing on the topic Defending America's Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2004 that would, among other things, dramatically increase mandatory minimum sentences for some first-time drug offenders from one to ten years, wreak havoc with the Federal Sentencing Guidelines, and further erode judicial sentencing discretion to impose sentences that truly fit the crime rather than appease the political agenda of some members of Congress.

With high mandatory minimums and high sentences so easy to procure, our federal prisons already are operating at over 133% of their capacity and constitute the largest prison system in the nation. Such legislation, therefore, merely exacerbates the inequity of a sentencing system that doles out to thousands unfairly harsh - and in some cases, stratospheric - sentences, often for minor drug offenses or the like.

Blakely hopefully will put the brakes to such legislation. But it shouldn't be seen as a stopping point, but rather as the beginning of a new sentencing era. It provides an opportunity to begin a new era of reform that moves away from knee-jerk, tough-on-crime statutes, and toward more reasonable, responsible and intelligent sentencing systems.


Mark H. Allenbaugh, an attorney in private practice, is a nationally recognized expert on federal sentencing, law, policy and practice, and is a co-editor of Sentencing, Sanctions, and Corrections: Federal and State Law, Policy, and Practice (2d ed., Foundation Press, 2002). Among other activities, he currently serves as the Chair of the Federal Sentencing Guidelines Task Force for the D.C. Chapter of the Federal Bar Association, Co-Chairs the Federal Sentencing Guidelines Committee for the National Association of Criminal Defense Lawyers, and is a member of the American Bar Association's Corrections and Sentencing Committee. Prior to entering private practice, he served as a Staff Attorney for the U.S. Sentencing Commission. The views expressed herein are his own and do not necessarily reflect the views of any of the named organizations. He can be reached at mark@fedsentencing.com.

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