T H E U N I V E R S I T Y O F C H I C A G O T H E L A W S C H O O L
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T H E U N I V E R S I T Y O F C H I C A G O
T H E L A W S C H O O L
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Albert W. AlschulerTelephone: 773 702 3586
Julius Kreeger Professor of Law and CriminologyFAX: 773 702 0730
July 19, 2004
Dear Senators Hatch and Leahy:
The Supreme Court’s June 24 decision in Blakely v. Washington requires an emergency response from Congress.
Blakely held that all facts necessary as a matter of law to increase a criminal sentence must be found by a jury beyond a reasonable doubt. This decision almost certainly prevents federal judges from increasing an offender’s sentence on the basis of the enhancements specified in the United States Sentencing Guidelines. Even such supporters of the Guidelines as Justice O’Connor and Justice Breyer, dissenting in Blakely, recognized that the government’s efforts to distinguish federal-Guideline enhancement from the state enhancement at issue in that case were “half-hearted.” These justices charged the majority with “ignor[ing] the havoc it is about to wreak on trial courts across the country.”
The most obvious judicial response to Blakely is to impose the sentence required by the Guidelines for the offense found by the jury (or admitted by the defendant’s guilty plea) without any upward adjustment or enhancement. To judge from the newspapers, this response has been the most common response of federal judges in the days following Blakely.
In Charleston, West Virginia, for example, Judge Joe Goodwin reduced the 20-year Guidelines sentence of a methamphetamine dealer to one year. He remarked, “At 240 months, Shamblin’s sentence represented much that is wrong about the sentencing guidelines; at 12 months, it is almost certainly inadequate.”
In the District of Columbia, Judge Thomas Penfield Jackson withdrew the six-year sentence he had imposed a day before Blakely in the case of a North Carolina tobacco farmer who had driven his tractor onto the Mall and threatened to detonate explosives. This defendant’s actions had led to the closing of several government offices, the deployment of SWAT teams, and road closings that disrupted four consecutive rush hours. In imposing his initial sentence, Judge Jackson called the defendant a “one-man weapon of mass destruction.” When he substituted a sentence of 16 months for his initial six-year sentence, the judge declared, “The Supreme Court has told me that what I did a week ago was plainly illegal.”
In Maine, Judge D. Brock Hornby imposed a sentence of six-and-one-half years in a drug case in which the Guidelines sentence would have been at least fifteen-and-one-half years. In Baltimore, Judge Marvin J. Garbis rescinded the sentence he had imposed in the case of a former Navy physicist who had attempted to seduce a girl over the internet. He observed that, in light of Blakely, the six-year prison term he had ordered was “clear error.” In Manhattan, Judge Deborah A. Batts did what many other judges have done in the wake of Blakely – postpone a scheduled sentencing hearing to allow the parties to consider the effect of the Supreme Court’s decision. She noted, however, “[T]he Court is currently of the mind to sentence the Defendant ‘solely on the basis of the facts admitted by the Defendant’ during his guilty plea.”
In Salt Lake City, Judge Paul G. Cassell took a different, and I think wiser, approach to implementing Blakely. He noted that, under Blakely, defendants remain entitled to downward Guideline adjustments. The resulting sentences, affording defendants the benefits of favorable Guidelines provisions without the burdens of unfavorable provisions, are likely to be far from the sentences Congress, the Sentencing Commission, or anyone else intended. (Judge Goodwin in West Virginia, while rejecting Judge Cassell’s approach, recognized that his own imposition of a sentence on the basis of downward but not upward adjustments was “an artificial application of the guidelines.”)
Judge Cassell also noted that Blakely reaffirmed the permissibility of discretionary judicial sentencing. Although discretionary sentencing involves fact-finding by judges who need not make their determinations beyond a reasonable doubt, judges have rested sentencing decisions on mixed judgments of fact and law throughout our history. In Blakely, the Supreme Court reaffirmed a decision approving this practice, Williams v. New York. Blakely requires proof beyond a reasonable doubt before a jury only when a specific finding of fact leads to an otherwise unauthorized increase in sentence.
Judge Cassell concluded that, rather than impose skewed, artificial sentences that no one had approved (or, indeed, would approve), the proper remedy for the constitutional violation the Supreme Court found in Blakely was simply to declare the current Federal Sentencing Guidelines unconstitutional. His remedy apparently would restore the system of discretionary sentencing that preceded the Guidelines with two significant differences. First, judges apparently would impose determinate sentences within the range authorized by Congress rather than indeterminate sentences subject to adjustment by the United States Parole Commission. Second, in exercising their discretion, judges would be guided but not bound by the Guidelines. (In Brooklyn, a ruling by Judge I. Leo Glasser approved Judge Cassell’s approach, and Judge Glasser developed one of Judge Cassell’s themes in detail. His opinion demonstrated the unworkability of still a third possible response to Blakely – using juries to administer the current Federal Sentencing Guidelines.)
The issue addressed by Judge Cassell, Judge Glasser, and others was one of remedy or severability. If Congress had known that the sentencing regime it approved would be declared unconstitutional, what would Congress’s second choice have been? Would Congress have preferred the application of only some Guidelines (those prescribing the sentences for the “base” offenses found by juries or admitted by defendants and those reducing these sentences on the basis of mitigating circumstances – but not Guidelines increasing sentences on the basis of aggravating circumstances)? Or would Congress have favored discretionary sentencing that could take account of all relevant circumstances and the Guidelines as well? Congress, by acting promptly, can save the courts from this counterfactual inquiry by making clear what its second choice is in fact.
Judge Cassell’s remedy would not only invalidate the existing guidelines but revise the pre-Guidelines sentencing scheme. Whether this remedy should be approved by the courts is highly contestable. A statute endorsing this approach, however, would be valid. Moreover, a judicial restoration of something like the pre-Guidelines regime would leave gaps that legislation would be needed to fill. A court could not, for example, provide for the appellate review of sentences – something that was not part of the pre-Guidelines regime and a valuable innovation that Blakely does not call into question.
Congress might enact legislation with something like the following provisions:
1) The sentences of defendants whose convictions and sentences were final prior to June 24, 2004 shall remain undisturbed. [The Blakely dissenters expressed concern that the Supreme Court might apply Blakely retroactively to the date of its decision four years ago in Apprendi. Such a ruling seems unlikely, however, and Congress could make this ruling even more unlikely by expressly affirming the validity of pre-Blakely sentences.]
2) Defendants whose cases have been or will be filed on or after June 24, 2004 and defendants whose convictions and sentences were not final on that date shall be sentenced (or resentenced) to a determinate punishment between the minimum and maximum penalties authorized by Congress, subject to the limitations of the following paragraph. These defendants shall be entitled to “good time” credits under [the applicable statute] but shall not be eligible for release on parole.
3) In imposing sentences within the range of penalties authorized by Congress, judges shall consider the provisions of the Sentencing Reform Act of 1984 and the United States Sentencing Guidelines as nonbinding guides to the exercise of their discretion. No offender whose crime occurred prior to the effective date of this enactment shall be sentenced more severely, however, than he or she would have been sentenced under the Sentencing Reform Act and the Guidelines. [Although Judge Cassell did not say that the prescribed Guidelines sentence would “cap” the punishment imposed on an offender whose crime was committed while the Guidelines were in effect, imposing greater punishment than Congress had authorized at the time of this offender’s crime would probably be unconstitutional.]
4) Judges shall provide reasons for their sentencing decisions, and either the defendant or the government may appeal a sentence to the United States Court of Appeals. To promote justice to the public and to the defendant, and also to promote the development of a common law of sentencing, the Court of Appeals shall review sentences for reasonableness and proportionality. The Court may increase or decrease any sentence. Following a Court of Appeals decision, either party may seek review on certiorari in the Supreme Court.
5) The United States Sentencing Commission may develop guidelines for the system of discretionary sentencing approved by this enactment without regard to the limitations of the Sentencing Reform Act of 1984. For example, the Commission may describe the appropriate treatment of recurring, paradigmatic cases and enable judges to treat these descriptions in the same manner as nonbinding judicial precedents. [This provision is plainly incomplete. Some provisions of the Sentencing Reform Act – for example, those setting forth the approved purposes of punishment – should certainly be retained to provide guidance to the Commission. Other provisions, however – for example, the provision requiring the Commission to set a sentencing range in which the maximum does not exceed the minimum by more than 25 percent for every category of offense and offender – would have little purpose in a system of nonbinding guidelines.]
If approved, this legislation might not be Congress’s final word on the subject of sentencing. Judge Cassell noted Congress’s apparent reluctance to afford federal judges greater discretion and suggested that Congress might respond to Blakely by enacting new mandatory minimum sentences – a development that virtually every serious student of criminal justice would oppose. New mandatory minimums would be controversial, however, not only in concept but in specifics. If the enactment of new mandatory minimum sentences or other detailed sentencing legislation proved possible, it might take years.
Justice O’Connor noted in her Blakely dissent that on March 31, 2004, “there were 8,320 federal criminal appeals pending in which the defendant’s sentence was at issue” and that “[b]etween June 27, 2000, when Apprendi was decided, and March 31, 2004, there have been 272,191 defendants sentenced in federal court.” Prosecutors, defense attorneys, and judges have described Blakely as “a tidal wave,” a “brave new world,” a “legal haymaker,” a “monkey wrench,” as “throwing everything into flux,” and as a source of “chaos,” “upheaval,” and “mass uncertainty.” A broad reassessment of federal sentencing policy can wait until Congress has provided the immediate response the federal courts need.
Judge Cassell, a champion of the Federal Sentencing Guidelines, apparently regrets the Blakely decision and the remedy this decision led him to approve. I applaud the decision in Blakely, and I believe the proposed legislation would improve the administration of federal criminal justice. In my view, Blakely merely endorses the far from radical idea that guidelines should be guidelines, not unyielding rules, and that when guidelines go to the point of dictating substantial increases in sentence on the basis of specific facts, the Constitution entitles defendants to have those facts determined by juries beyond a reasonable doubt.
The proposed legislation would not return the federal courts to the pre-Guidelines system of unguided sentencing discretion. It would promote equal treatment not only through sentencing guidelines but also through the appellate review of sentences. In addition, this legislation would further a discussion among the courts, Congress, and Sentencing Commission. The threatened loss of this interchange was the principal concern of another Blakely dissenter, Justice Kennedy.
Whether one agrees with me or Judge Cassell about the foregoing issues is not crucial. Despite our differences, Judge Cassell and I agree that a discretionary sentencing system in which judges use the Guidelines simply as guidelines would be immeasurably better than one systematically imposing sentences approved by no one. I hope that, like Judge Cassell and me, Senators and Members of Congress with differing perspectives will agree about the resolution of this pressing question, deferring their long-term battles until later.
I would be pleased to provide documentation and elaboration for any of the statements made in this letter.
Sincerely yours,