Vol. 36, Number 8—August 2004

Blakely Roils Waters of Federal Sentencing

As the entire criminal justice system struggles with new doubts sparked by a Supreme Court ruling that may—or may not—doom federal sentencing guidelines, federal judges must soldier on. It can be hazardous duty.

"It looks like a No. 10 earthquake to me," Justice Sandra Day O'Connor told the Ninth Circuit Judicial conference. "I think the consequences are severe and it's going to take a little time to figure out what to do," said O'Connor, a dissenter from the June 24 decision in Blakely v. Washington.

But clarity may be on the way. The Supreme Court has agreed to hear oral arguments in two Blakely-related cases on October 4, 2004, the opening day of the new term.

Appellate court panels and district judges have varied greatly in assessing the impact of the Supreme Court's Blakely ruling. In the 5-4 decision, the justices struck down Washington state's sentencing method. Citing a defendant's Sixth Amendment right, the highest court ruled that any aggravating factors used to increase a criminal sentence must be proven to a jury, not decided by a judge.

In a footnote, the majority opinion states, "The Federal Guidelines are not before us, and we express no opinion on them." The court's dissenting opinions, however, insisted that 20 years of sentencing reformation represented in the federal guidelines have been torn asunder.

The Blakely ruling built on a 2000 Supreme Court decision, Apprendi v. New Jersey, that struck down a hate crime law because judges were allowed to increase sentences above the statutory maximum. Only juries can do that, the Court said in its Apprendi ruling.

In Blakely, the court said the rule it announced in Apprendi also applies to sentences that, although below statutory maximums, are above sentencing guidelines.

The fallout was immediate, but not uniform.

In the District of Utah, for example, Judge Paul Cassell found the federal sentencing guidelines to be unconstitutional as currently applied. But in a separate, later ruling, Chief Judge Dee Benson reached the opposite conclusion. In all, more than a dozen district judges already have reached sentencing decisions that take Blakely into account. Other judges have postponed sentencing hearings or decisions to give themselves more time to study that ruling.

Since the Blakely decision, appeals courts have been quick to schedule arguments and attempt to address the impact of the decision on the federal sentencing guidelines.

A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit ruled on July 9 that the guidelines are invalid when used to stiffen a sentence based on facts not determined by a jury.

A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit issued a ruling on July 12 that limited the impact of Blakely. The panel's opinion, however, noted, "This court assuredly will not be the final arbiter of whether Blakely applies to the federal guidelines, but the unremitting press of sentencing requires us to produce a decision."

Two days later, a panel of the U.S. Court of Appeals for the Sixth Circuit said, because of the Blakely ruling, that "a district judge should no longer view herself as operating a mandatory or determinate sentencing system, but rather should view the guidelines in general as recommendations to be considered and then applied only if the judge believes they are appropriate and in the interests of justice in the particular case."

The entire U.S. Court of Appeals for the Second Circuit took the rare step of certifying three questions to the Supreme Court seeking guidance on the reach of the Blakely decision.

The appeals court requested "an expedited briefing and hearing schedule" to head off "what we see as an impending crisis in the administration of criminal justice in the federal courts."

The U.S. Court of Appeals for the Ninth Circuit on July 21 said that Blakely had "worked a sea change in the body of sentencing law." The U.S. Court of Appeals for the Eighth Circuit declared the sentencing guidelines unconstitutional on July 23.

On July 21, the Senate passed a resolution imploring the justices to explain the impact of the court's decision on federal sentencing. The House, however, did not pass a similar resolution before adjourning for its August recess.

The same day, the Justice Department asked the Supreme Court to accept two cases for expedited review this fall, to resolve what the Solicitor General said in his brief is "a state of deep uncertainty and disarray." The government said it was hoping that a case from the U.S. Court of Appeals for the Seventh Circuit and a case from the District of Maine would give the Supreme Court the avenue to "provide guidance on how to conduct the thousands of federal criminal sentencings that are scheduled each month." The two consolidated cases, U.S. v. Booker, and U.S. v. Fanfan, will be heard on the first day of the new term.

For their part, federal prosecutors are operating in a pre-Blakely fashion. In an early July memorandum, Deputy Attorney General James Comey told all federal prosecutors that the Justice Department's position "is that the rule announced in Blakely does not apply to the Federal Sentencing Guidelines, and that the Guidelines may continue to be constitutionally applied in their intended fashion, i.e., through fact-finding by a judge, under the preponderance of the evidence standard, at sentencing." (A jury's finding must meet the higher standard of proof: beyond a reasonable doubt.)

Comey's memo said the government's legal argument, which will be developed more fully in a model brief that the Justice Department's Criminal Division will distribute, "is that the lower federal courts are not free to invalidate the Guidelines given the prior Supreme Court decisions upholding their constitutionality, and that, on the merits, the Guidelines are distinguishable from the system invalidated in Blakely."

Probation officers generally have been asked to continue preparing comprehensive pre-sentence reports and calculating guidelines following procedures in place before the Blakely decision.

In some districts, the court has asked probation officers to clearly identify facts that were not proven to a jury or admitted to by a defendant. In those districts where sentencing hearings have not been postponed, objections to the pre-sentence report are increasingly citing Blakely.

Probation officers are monitoring the case law in their districts and circuits, and are consulting with their courts to ensure that the pre-sentence reports continue to assist the judges make their sentencing decisions. Federal courts conduct about 1,200 sentencing hearings each week.

When the Senate Judiciary Committee convened July 13 to consider the possibility of emergency legislation in the wake of the Blakely ruling, Committee Chairman Senator Orrin Hatch (R-UT) acknowledged that the uncertainty "has understandably created angst throughout the federal criminal justice system." He added: "I hope the Supreme Court promptly considers the matter."

Hatch said the Blakely ruling's application to federal sentencing guidelines could create "a clear double standard."

"Any sentencing fact that would increase a sentence would have to be presented to a jury and proven beyond a reasonable doubt. But any sentencing fact that would decrease a sentence could be decided by a judge by a preponderance of the evidence," he said. "Not only would this be incredibly confusing to everyone involved in this process but I imagine that crime victims and their families would consider this one-way ratchet to be fundamentally unfair."

Hatch warned of an added potential harm.

"While I believe most federal judges are trying their hardest to address this issue deliberately and with the utmost fairness, I fear that some judges might view Blakely as an opportunity to selfishly garner judicial power in the hopes of restoring unlimited judicial discretion with respect to sentencing. . . In addition, it is possible that some here in Congress may respond by creating new mandatory minimum penalties to compensate for the unfettered discretion. It may only take a couple of lenient sentences in high profile cases to raise enough of a stir to increase mandatory minimum penalties."

Senator Patrick Leahy (D-VT), the committee's ranking minority member, said, "Blakely raises real practical problems that unfortunately threaten to clog our federal courts with procedural and constitutional nightmares. But we can use it as a springboard to discuss federal sentencing practices thoughtfully. As we analyze Blakely's implications, we are well advised to keep the simple principles of the 1984 (Sentencing Reform) Act in mind. We must respect the wisdom and good faith of federal judges, while maintaining the safeguards of structure and transparency to their exercise of discretion," he said. "We must remember that consistency and predictability of sentencing are admirable goals. And we must avoid the further politicizing of sentencing."

Hatch and Leahy jointly wrote to Chief Justice William Rehnquist, stating, "We would greatly appreciate receiving the views of the Judicial Conference concerning the impact of the Blakely decision on the Guidelines. In addition, please provide us with your opinion as to what federal legislative response, if any, would be advisable."

It has been a busy time for the United States Sentencing Commission. In testimony prepared for the July 13 Senate Judiciary Committee hearing on Blakely and the future of the federal sentencing guidelines, Commission Vice Chairs John Steer and Chief Judge William Sessions III (D.Vt.) detailed some of the agency's activity.

"Over the past three weeks, the Sentencing Commission has worked intensively with Congress, the Department of Justice, representatives of the federal Judiciary, and other interested persons to analyze the impact of the Supreme Court's decision and help guide the discussion concerning the future of the federal sentencing guidelines system," they said.

"Even if Blakely is found to apply to the federal guidelines, the waters are not as choppy as some would make them out to be. The viability of the federal guidelines previously was called into question by some after the Supreme Court decided Apprendi v. New Jersey. After an initial period of uncertainty, however, the circuit courts issued opinions and the Department of Justice instituted procedures to ensure that future cases complied with Apprendi's requirements and also left the guidelines system intact," they said.

The Administrative Office, too, has taken an active role in trying to assess Blakely's impact. To keep the Judiciary informed of all developments, Director Leonidas Ralph Mecham has created a task force led by the Assistant Director of the Office of Judges Programs, Peter McCabe.

One development has been a careful review of future resource needs in anticipation of more appeals and higher jury and defendercosts in the wake of Blakely and recent Supreme Court rulingson detainees.

The Federal Judicial Center has reached out to judges nationwide in a Federal Judicial Television Network program that discussed the Blakely decision and the possible future of sentencing law.

Many in the legal profession are watching intently each new manifestation of Blakely's impact. A Ohio State University law professor, Douglas Berman, created a quickly popular web log, or blog at http://sentencing.typepad.com, to track all Blakely-related developments. Public defenders can track similar developments on www.fd.org, which lists a circuit-by-circuit summary of all court decisions that cite the June 24 Supreme Court ruling.

The national news media has followed such decisions with considerable interest, and with varying editorial comment. A Washington Post editorial, entitled "A Supreme Mess," praised the Second Circuit's certified-question tactic.

"The Supreme Court made this mess, and it should be obliged to clean it up quickly," the editorial said. Other media were less clear about what, if any, further court action is warranted.

It appears that no legislative fix will be attempted until the Supreme Court reconvenes. If the justices were to explicitly extend Blakely to the federal sentencing guidelines, a wide range of legislative proposals could be offered.

One already has been offered to the U.S. Sentencing Commission by Frank Bowman, an Indiana University law professor. His proposal, aimed at preserving the fundamental guidelines structure, is to amend the sentencing ranges—increase the top of each guideline range to match the statutory maximums.

"The change I suggest would render the federal sentencing guidelines entirely constitutional under Blakely," Bowman wrote in a June 27 memorandum submitted to the Sentencing Commission.

Bowman called his proposal perhaps "only a stopgap which would serve to prevent chaos . . . and give everyone breathing space within which to plan the next step in the evolution of the federal sentencing system." He added, "If a proposal like the one made here were to be adopted, it would permit a more consultive and deliberative process of reconsideration of current federal rules, a process that would nonetheless operate in the shadow of the looming possibility of another, and this time definitive, judicial intervention."