Blakely’s Unfinished Business
Mark D. Harris
Editor, Federal Sentencing Reporter; former Assistant United States Attorney, Criminal Division, U.S. Attorney’s Office for the Southern District of New York
For our third consecutive Issue, the Supreme Court’s groundbreaking decision in Blakely v. Washington[1] occupies center stage. The circumstances this time, however, are somewhat changed. On the first day of the October Term, the Supreme Court heard arguments in two cases – United States v. Booker and United States v. Fanfan[2] – that present the critical question whether Blakely will apply to the federal sentencing guidelines. Decisions are expected imminently in these cases, which may have a potentially decisive impact of these cases on federal sentencing.
Still, no matter how Booker and Fanfan are decided, Blakely is a landmark decision because it represents the first time in decades that the Supreme Court has imposed significant constraints on the sentencing process as it affects large numbers of criminal defendants. Blakely brought long-neglected matters of procedural justice at sentencing to the fore of the judiciary’s and legislatures’ agendas. As such, it will remain a case that demands study, analysis, and critique. This Issue continues that effort, as FSR presents another collection of articles and primary materials that navigate the new sentencing world Blakely created.
1. Matters of Implementation
Assuming that Booker and Fanfan test the reach of Blakely but do not disturb its core holding, there remains the important task of analyzing how Blakely actually affects sentencing practices in the states and, perhaps, in the federal system. This Issue features two expansive analyses of Blakely’s direct impact, both of which should prove extremely useful to practitioners as primers on the state of the law after Blakely. Equally significant, both document the extraordinary degree of uncertainty that now attends nearly every aspect of sentencing law and practice.
The first analysis, authored by Jon Wool of the Vera Institute of Justice, considers Blakely’s impact on a range of sentencing issues for states. Some of these issues are significant to states across the board – for example, how waivers of Blakely rights might work and whether the decision should apply retroactively to already-sentenced defendants. Others turn on the particular features of individual states’ systems. As FSR readers are well aware, the sentencing systems of many states vary considerably from the Washington regime under review in Blakely. In some, defining what counts for Blakely purposes as the maximum sentence authorized by the jury’s verdict is not a simple task. For example, Michigan and Pennsylvania employ an indeterminate sentencing system in which judges set minimum terms of incarceration within large open-ended ranges with actual release dates decided by a parole board. Whether Blakely permits judicial fact-finding at sentencing within such a scheme will have to be resolved by the appellate courts. As an example of the kind of detailed analysis of state law occasioned by Blakely, this Issue includes a special report from the Minnesota Sentencing Guidelines Commission making recommendations for reforms to ensure Minnesota sentencing remains in compliance with the Sixth Amendment.
The second piece, by Professor Jenia Iontcheva Turner of SMU Dedman School of Law, examines the sentencing procedures that will be required to implement Blakely’s mandate. As the Blakely dissents contend, Blakely raises but does not settle many questions about the nature of any jury sentencing procedure seeking to comply with its strictures. For example, which types of determinations count as facts that a jury rather than a judge must decide? Need such proceedings follow all the evidentiary rules and procedures that govern at trial? Are so-called bifurcated proceedings doctrinally or practically unavoidable? While posing these questions and others, Professor Turner also invites consideration of the virtues of more radical reform – such as empowering juries not merely to find facts relevant to sentencing but also to fix sentences outright in an exercise of their own discretion.
2. Matters of Theory
As recent Issues of FSR have shown, Blakely is one of those unusual cases that provokes heated discussion not only of whether it was right or wrong, but also of what it “means.” In October of this year, Stanford Law School held a conference on Blakely and the future of American sentencing with six panels each devoted to a different aspect of the decision. One striking feature of the first panel, “The Jurisprudence of Blakely: Roots and Implications,” reprinted here as part of an edited transcript of the conference, is the extraordinary range of views from the conferees on what jurisprudential principle Blakely stands for. Some argued that Blakely was “really” about distrust of state (or federal) legislatures; others believed that it was about distrust of judges; still others, that it was an exercise of straightforward formalism, or a product of fear of lower-court judges interpreting the Constitution, or a signal that the end had come to the progressive movement of criminal reform.
Professor Peter Rutledge of the Columbus School of Law at Catholic University grapples with one of the many puzzling aspects of the entire line of cases starting with Apprendi v. New Jersey[3] and stretching to Blakely, namely the willingness of the Court’s most ardent proponents of federalism – Justice Scalia and Justice Thomas – to impose a straitjacket interpretation of the Sixth Amendment onto the states. He proposes an escape hatch for these Justices, should they desire one, by means of the Privileges and Immunities Clause, recently invigorated by the Supreme Court although as yet devoid of much substance. Using the clause, says Professor Rutledge, these Justices could chart a course that allows them to define the jury trial right but limit that interpretation to the federal system.
Finally, FSR’s own Professor Douglas Berman expands on his comments at Stanford in a provocative piece on “conceptualizing” Blakely. He argues that Blakely is best understood as announcing a rule that distinguishes the treatment of offense conduct at sentencing from offender characteristics. As currently practiced virtually everywhere, sentencing blends these two categories of information. But, according to Professor Berman, an attentiveness to the Constitutional text and institutional roles suggests that only the former requires fact-finding by the jury. This distinction plays a role in the Supreme Court’s adherence to the exemption announced in Almendarez-Torres v. United States,[4] whereby the fact of a prior conviction may be found by the judge. Some have characterized the case as a relic of the Court’s pre-Apprendi mindset, but Professor Berman finds in it a deeper insight. Since offense conduct by definition relates to the commission of a crime, it falls into an area traditionally within the province of the jury, even when that conduct bears on sentencing decisions. On the other hand, offender characteristics do not relate to the crime itself and therefore belong within the purview of the judge.
Professor Berman offers forthright praise for Blakely, not only for the merits of the rule it announces, but also because it has “engendered a robust national dialogue” on sentencing law and policy. Quoting an earlier FSR article written by Judge Nancy Gertner, he reminds us that the premises of the entire sentencing system have changed radically over the past quarter century, and yet only recently has the Court reconsidered the constitutionality of contemporary procedures. Blakely is a call to all interested parties to think anew about the types of procedures that befit modern sentencing.
3. Matters of Legislation
As discussed above, the question presented in Booker and Fanfan is whether Blakely applies to the Federal Sentencing Guidelines. Like many others have done, James Felman considers the appropriate legislative response if the Supreme Court in fact finds that the current federal system violates the jury trial right. The principal options boil down to three: codify the Guidelines into the federal criminal code; convert the Guidelines into advisory rules; or lop the maximums off all Guideline ranges and let judges exercise sentencing discretion up to the statutory maximums, a proposal pioneered by FSR Editor and Indiana Law School Professor Frank Bowman. The second and third plans have several clear advantages: they largely preserve the structure of the guidelines; they are relatively simple to enact; and they comply with the demands of the Sixth Amendment, as announced by Blakely. (The last takes advantage of the Court’s somewhat surprising holding, in Harris v. United States,[5]approving the use of judicial fact-finding to set minimum terms.)
But Felman strongly advocates the first, despite the fact that it would require revision of large swaths of Title 18, the rules of criminal procedure, pattern jury instructions, and other rules and practices as well. Felman might concede that his preference for codification is due in large part to the disadvantages of the other options. Advisory guidelines, while easily adapted from the current guidelines, seemingly leave in place all the disadvantages of the old indeterminate regime. And he rejects the Bowman plan because, in his view, it relies on Harris despite Harris’ apparent inconsistency with Blakely and because it “essentially sends the message that we are unconcerned with sentences that are unduly harsh, so long as no one is punished too leniently.”
4. The Future of Williams v. New York
While Blakely seemed to put to rest questions about the Court’s commitment to the new principles announced in Apprendi v. New Jersey, there remain areas where the old jurisprudence lives on. As mentioned, the most obvious example is Harris v. United States, where the Court’s approval of judicial fact-finding to set minimum terms seems hard to square with Blakely’s rejection of the same type of fact-finding to raise maximum terms.[6] But the more insidious instance is the Court’s continued lip service to a much older decision that upheld the exercise of completely unguided judicial discretion. In Williams v. New York,[7]the Court held that a judge could lawfully sentence a defendant to death on the basis of information contained in probation and other reports that were introduced only after trial and at a time when the defendant had limited if any opportunities for rebuttal. The Blakely Court cited Williams as if it were still good authority for the constitutionality of indeterminate sentencing.[8] But a reexamination of Williams -- and attention to the reasoning of Blakely itself -- counsels that Williams is and should be treated as a dead letter.
The history of sentencing reform in this country has been told many times, especially in the pages of this journal, and need not be reprised in great detail here. It is generally accepted that broad judicial discretion at sentencing came into existence only with the introduction of indeterminate sentencing systems in the nineteenth century. Under those regimes, judges had broad power to impose sentences as they saw fit within wide statutory ranges of time. They were permitted to consider information about the offender and his crime drawn from any number of out-of-court sources, unimpeded by procedural or evidentiary limitations on its use. A judge could impose sentence for any reason or for no stated reason at all.[9] Criminal sentences were almost entirely unreviewable, not merely in the sense that courts had no general appellate authority over sentences, but also in that a sentencing order typically contained no findings of fact and no rulings of law to review.[10]
That such a literally lawless system was ever sanctioned remains a remarkable fact. Yet in Williams, the Supreme Court upheld the exercise of pure, untrammeled discretion against a due process challenge. The decision was premised rather explicitly on a rehabilitationist rationale, which it was thought necessitated an increase in the discretionary powers of the judge. Sentencing authorities (not merely judges but also “nonjudicial agencies” as well) were required to have access to the fullest possible information about the offender, unrestricted by evidentiary and other limitations, on the theory that with “careful study of the lives and personalities of convicted offenders . . . many could be less severely punished and restored sooner to complete freedom and useful citizenship.”[11] Since the goals of sentencing were more concerned with reformation and rehabilitation than with punishment, it was also less important for the defendant to enjoy the right to the adversarial testing of evidence. After all, held the Court, the probation officers who accumulated the information upon which judges relied were trained not “to prosecute but to aid offenders.”[12]
Many commentators have emphasized the crucial differences between current sentencing systems and the one in Williams to argue that modern-day offenders should receive far greater procedural rights at sentencing.[13] They observe that under determinate regimes, facts carry more weight in the determination of punishment. Deterrence, incapacitation, and retribution have become the dominant goals of sentencing rather than rehabilitation. Terms of incarceration are often considerably higher than they were formerly. And since judges are in effect making fact-based determinations of culpability similar to the determinations of guilt made by juries, it is appropriate for defendants to receive procedural protections more like the rights they would receive at trial.[14]
But the point goes much further. What have changed over the last fifty years are not merely the methods by which sentencing occurs but the entire philosophy of punishment. Even if a legislature were to enact an indeterminate regime along the lines of Williams today, the rationales stated there would not be available to uphold it. No one believes anymore that the goal of rehabilitation justifies totally informal fact-finding procedures.[15] Indeed, few believe that the major organs of our criminal justice system are designed (or concerned) to serve rehabilitative ends. No one believes that “modern concepts [of] individualizing punishment” require completely open-ended discretion that allows judges to use criteria varying from one defendant to the next.[16] Most important, no one doubts that sentencing now is a thoroughly adversarial process in which the prosecution and the defense have diametrically opposed aims. Williams was a product of its age, but its logic does not control ours.[17]
The significance of Blakely is that it provides two additional reasons for viewing Williams as defunct, despite its dicta to the contrary. The first comes indirectly from the Blakely dissents. Justice O’Connor argued that the majority must be wrong because when Washington replaced its indeterminate sentencing scheme with the current system of guided discretion, all it did was to “place[] meaningful constraints” on the judicial discretion that state judges were already exercising.[18] Such legislative reforms, she reasoned, must be at least as constitutional as their predecessors since they provide more process at sentencing rather than less. Arguing the same point in reverse, Justice Breyer maintained that legislative returns to indeterminate schemes in response to Blakely would “diminish the ‘reason’ the majority claims it is trying to uphold.”[19] That is, although a judge exercising guided discretion in an indeterminate scheme derives his authority to sentence from the jury’s verdict, the jury itself exercises no influence over the sentence. If determinate sentencing disserves the aims of the jury trial right, then all the more so indeterminate sentencing.
The majority responded to the dissents’ syllogism -- that if indeterminate schemes are constitutional, so must be determinate schemes -- by arguing that they misconceived the basis of the decision. Judicial fact-finding was objectionable under the Sixth Amendment not because of the amount of judicial discretion it allowed per se, but because that fact-finding infringed on the traditional role of the jury to find all facts essential to the imposition of the penalty. Indeterminate sentencing may increase judicial discretion, on the other hand, but not at the expense of the jury.[20]
The majority may be correct that finding a jury trial right in determinate schemes does not logically entail the conclusion that indeterminate sentencing is unconstitutional. But the dissents persuasively argue that the holdings of Blakely and Williams are an extremely uncomfortable fit. The right to jury trial may provide a constraint on legislative manipulation of the definition of crimes, but it is after all a right possessed by an individual defendant rather than society at large. Imagine two defendants who committed the same crime, one of whom is sentenced under the current Federal Sentencing Guidelines, and the other of whom is sentenced under an identical but advisory scheme to the same term of incarceration. In each case, the judge will go through the same motions, adding up offense levels, calculating criminal history, and reaching the same guideline range, within which he will impose sentence -- with the only difference that the first judge will do so because he is required to,while the second is only advised to. In practice, however, the same facts will have had exactly the same impact on each defendant’s sentence. It is highly counterintuitive to argue that the first defendant’s right to jury consideration of the facts was compromised but not the second’s.