A Significant Decision that May Not Matter:
The Supreme Court Holds That Only Juries, Not Judges, Can Make the Factual Determinations That Increase Sentences

By SHERRY F. COLB
Tuesday, Jun. 29, 2004

Last week, in Blakely v. Washington, the U.S. Supreme Court announced that a judge in a criminal case cannot base an increased sentence on his own factual determinations. In other words, a jury - not a judge - must draw every conclusion of fact that is necessary to a convicted defendant's extended sentence.

This ruling has sent a wave of anxiety through the prosecutorial community, not only in the state of Washington - where the case arose - but also in the federal system.

The reason federal prosecutors are so concerned is that the U.S. Sentencing Guidelines provide for the same sort of post-verdict judicial fact-finding that the Court in Blakely declares a violation of the Sixth Amendment jury trial right. As a decision affecting current prisoners, moreover, Blakely may call into question the thousands of sentences imposed under the existing regime.

Ultimately, however, in spite of all of the fanfare, Blakely will probably do little to alter the jury's role in future criminal cases.

The Sentencing of Ralph Blakely

The basic facts of the case were these: Ralph Howard Blakely, Jr., pleaded guilty to kidnapping his estranged wife. Absent additional findings by the judge, the relevant Washington statute provided for a maximum sentence of 53 months imprisonment. After reviewing the evidence, though, the judge in the case determined that Blakely had acted with "deliberate cruelty" in carrying out the kidnapping. Accordingly, the judge imposed an "exceptional" sentence of 90 months, permitted by the statute in such circumstances.

In making the "deliberate cruelty" finding, the judge drew factual conclusions above and beyond those necessary to the guilty verdict. He then imposed an upward departure on the basis of those facts.

It was this departure by the judge that the Supreme Court declared invalid. Its objection was that the judge enhanced the defendant's punishment without a jury's having found all of the facts essential to that enhancement beyond a reasonable doubt (and without the defendant's having conceded all of the facts as part of his guilty plea).

The Jury Trial Right: The Right To Have a Jury Find All Sentencing Facts

The right to a trial by jury, explained the Court's majority opinion, is not just the right to a jury verdict. It is an entitlement to have a jury determine every single fact that forms the foundation for any part of a defendant's punishment.

In this case, as well as in the primary precedent that it applies - Apprendi v. New Jersey - the Supreme Court purportedly cut through some of the formalism that had previously plagued criminal constitutional law.

As every first year student learns in her criminal law class, a crime is composed of several "elements." These elements typically include "mens rea" (referring to the defendant's required state of mind, such as intent or recklessness), "actus reus" (referring to the defendant's action, like pulling the trigger on a gun or throwing a punch), a harmful result (such as the death of a victim), and causation (referring to a link between the defendant's action and the harmful result).

The elements of first degree murder, for example, might be defined to include an intention to kill, an act to carry out that intention, a death, and a causal link between the defendant's act and the death.

The defendant accused of first degree murder, as I just defined it, has long had the right to have a jury consider the evidence and decide whether the state has proven each listed element beyond a reasonable doubt. Once the jury does so, however, lawmakers previously thought that a judge could go on to sentence the defendant to a longer or shorter prison term (or to the death penalty, if the law so allowed) on the basis of additional evidence on the question of what an appropriate sentence might be.

Suppose, for example, that the defendant had a history of extreme violence and committed the murder in question in a particularly sadistic way. These would be reasons for imposing a harsher sentence. On the other hand, the defendant might be a kind person who made one mistake and is unlikely to hurt anyone in the future. This would be a reason for mitigating the harshness of the sentence.

These additional facts regarding the character and dangerousness of the defendant might be called "sentencing facts," while the facts necessary to finding the defendant guilty of murder might be termed "guilt facts." Prior to the Court's Apprendi line of cases - which culminated in the recent Blakely decision - lawmakers had believed they could specify that juries need only consider guilt facts, while judges may (or must) consider sentencing facts.

But if the murder statute had instead called character, dangerousness, and a history of bad behavior "guilt facts" or "elements" of the offense, it was understood that the jury rather than the judge would have to pass on them.

The distinction articulated here is a formalistic one. Whether the facts are classified as elements or features of sentencing, a person would have to kill another person intentionally and be dangerous, bad, and sadistic in carrying out the act in order to receive the most severe sentence available. Simply classifying a finding as a sentencing fact, however, relieved the prosecutor of the obligation to prove some of those facts to the jury.

If the right to a jury trial is a constitutional limit on state and federal legislative power, the ability to re-label facts in this way would seem effectively to undermine the Sixth Amendment, allowing an easy end-run around its requirements. Indeed, this is the explanation Justice Scalia gave, in his majority opinion in Blakely, for the Court's ruling that a jury must decide all punishment-increasing facts, not just those facts the legislature labels "elements."

Trading Formalism for Formalism

Blakely would seem, then, to be a healthy departure from formalism - that is, from allowing formal labels to affect the breadth of the right to a jury trial. The problem, however, is that Blakely replaces that old guilt facts/sentencing facts formalism with a formalism of a different sort.

Consider why it is, on the majority's account, that a jury rather than a judge must determine all facts necessary to a sentence: because it is the jury that "authorizes" the judge to impose a sentence. If the judge herself is determining facts necessary to a sentence, then she exceeds the scope of the jury's verdict and thus the authority it has granted her. She cannot do that without violating the Sixth Amendment right to have the jury try the defendant.

But does a jury really authorize a severe sentence merely by making all of the requisite fact findings?

Jurors Can't Truly Authorize Sentences Of Which They Must Remain Ignorant

In United States v. Pabon-Cruz, Judge Gerard Lynch of the Southern District of New York presided over the trial of Jorge Pabon-Cruz for knowingly receiving or distributing child pornography and for advertising to receive or distribute child pornography. In the course of instructing the jury prior to deliberations, Judge Lynch told jurors that a conviction would result in a mandatory minimum sentence of ten years imprisonment. He gave this information to the jurors, he explained, because of the Draconian nature of the sentence.

One might say, in the language of Blakely, that Judge Lynch was providing jurors with the knowledge of the sentence that the jury would be "authorizing" if it found the defendant guilty. But the U.S. Court of Appeals for the Second Circuit found the revelation of sentencing information to the jury to be a clear abuse of discretion by Judge Lynch. It held, that is, that the judge was wrong to tell jurors about sentence length. It insisted that jurors be kept in the dark.

The U.S. Supreme Court, and particularly Justice Scalia - the author of Blakely - would almost certainly have agreed with the Second Circuit's ruling. On the Court's view (as previous cases have made explicit), the jury is supposed to find facts and not to concern itself with the legal consequences of those findings.

If jurors are to protect a defendant from government oppression, however, it might be helpful for them to know what the government has in store for a defendant against whom they find facts. It is otherwise somewhat disingenuous to say that the jury has truly "authorized" a sentence to which it might in fact be strongly opposed.

Another Problematic Formalism: Blakely Is Easily Circumvented

Another, more obvious, formalism put in place by the majority in Blakely, and discussed by Justice Breyer in his dissent, is the continuing capacity of judges to find mitigating facts on the basis of which the judge may depart downward in sentencing.

Surely it does not violate the Sixth Amendment right of a defendant to a jury trial for a judge to be able to make findings and grant the defendant a lower sentence than the maximum available under the law. Yet consider the consequence of this reality - when combined with Blakely's rule that a judge cannot make findings that increase the length of a sentence.

Recall the hypothetical murder conviction discussed earlier. The jury finds that the defendant intentionally acted to cause the victim's death. The judge may now impose a twenty-year sentence but may first consider the following mitigating fact questions: Was the defendant a particularly kind person prior to committing this offense?; Is the defendant safe to be around other people?; and Did the defendant do what he could in committing the murder to avoid causing prolonged suffering to his victim? The statute can then permit (or require) the judge to lower the sentence of twenty years by five years for each affirmative answer to any of these questions.

The result is the same as it would be if the conviction carried a base sentence of five years which the statute allowed the judge to enhance by up to fifteen years on finding three analogous aggravating factors. Yet the latter, and not the former, would be barred by the Court's decision in Blakely.

When Circumvention Allows the Same Result, the Defendant Is Not Protected

Does this truly amount to any kind of meaningful protection for the criminal defendant? The answer, for good or for ill, is no.

The requirement that the jury verdict authorize the entire length of whatever sentence is imposed will likely motivate legislatures simply to allow the judge to impose a maximum sentence on the basis of a guilty verdict without making any additional findings of fact.

But won't the jury recoil from such severe sentences and refuse to convict? It will not, because the jury will remain ignorant of the sentences it "authorizes" in bringing back a guilty verdict. The jury's authorization of a sentence - and accordingly, the guarantee that the sentence not be oppressive - is thus entirely formalistic, as it has always been (absent jury nullification).

The case of Blakely is therefore both extremely significant - in its consequences for defendants and prosecutors who have participated in a system that is now invalid - and largely irrelevant - in its future significance to the states and the federal government.

As I have explained above, governments can simply do some careful re-labeling and thereby undermine with formalism the assault on formalism undertaken by the majority in Blakely. The right to jury trial, as elaborated by our precedents, is thus hoisted by its own petard.


Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark. Her earlier columns, including columns on criminal law and procedure issues, may be found in the archive of her work on this site.

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