Law Review Note Outline THE CONSTITUTIONALITY OF SENTENCING GUIDELINES: BLAKELY V. WASHINGTON CHANGES EVERYTHING, OR DOES IT? I. Introduction A. Grab: Imagine pleading guilty expecting a particular sentence, then the Judge makes a determination that you did other bad things and gives you a sentence much greater than you anticipated. B. Explanation of the Sixth Amendment right to trial by Jury. C. Explanation of the methods used in determining sentencing: 1. Statutory maximums and minimums provided by congress 2. Sentencing guidelines a. Federal b. State D. Quick explanation of Blakely v. Washington rendering Washington State’s sentencing guidelines unconstitutional. II. History and Background of sentencing procedures III. Facts A. Petitioner Ralph Howard Blakely, Jr., married his wife Yolanda in 1973. B. He had been diagnosed at various times with psychological and personality disorders including paranoid schizophrenia. C. His wife ultimately filed for divorce. D. In 1998, he abducted her from their home in Washington, binding her with duct tape and forcing her at knifepoint into a wooden box in the bed of his pickup truck. In the process, he implored her to dismiss the divorce suit and related trust proceedings. E. When the couple’s 13-year-old son Ralphy returned home from school, petitioner ordered him to follow in a another car, threatening to harm Yolanda if he did not do as told. F. Ralphy escaped and sought help. Petitioner was finally arrested. G. The State charged petitioner with first-degree kidnapping. H. A plea agreement was reached reducing the charge to second-degree kidnapping involving domestic abuse and use of a firearm. I. Petitioner entered a plea of guilty admitting the elements of the offenses charged, but no other relevant facts. J. Washington’s sentence reform act specifies, for petitioner’s offence of seconddegree kidnapping with a firearm, a “standard range” of 49 to 53 months. K. The judge rejected the State’s recommendation and imposed an exceptional sentence of 90 months IV. Analysis
A. Majority (Scalia, Stevens, Souter, Thomas, and Ginsburg) 1. Holding that “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. 2. Following the holdings in Apprendi v. New Jersey and Ring v. Arizona, the court concluded that the defendant’s constitutional rights had been violated because the judge had imposed a sentence greater than the maximum he could have imposed under state law without the challenged factual finding. 3. Elements v. Sentencing factors i. Elements – Must be proved by a jury ii. Sentencing factors – Can be determined by a judge 4. Majority reasons that if a jury must only determine elements and a judge is allowed to consider sentencing factors, then the judge can sentence a man for committing murder even if the jury convicted him only of illegally possessing the firearm used to commit it. 5. Majority talks about 2 alternatives for those who disagree with the holding. i. Elements v. Sentencing Factor approach ii. Legislatures may establish legally essential sentencing factors within limits approach 6. Majority makes clear they are not finding determinate sentencing schemes unconstitutional. 7. Discussion of 6 th amendment as reserving power of the jury, not a limitation on judge power. B. O’Connor Dissent (Breyer, Renquist, and Kennedy join) 1. Main argument is that this decision will wipe out sentencing guideline schemes and 20 years of sentencing reform. 2. Effect of the decision will be greater judicial discretion and less uniformity in sentencing. 3. Dissent talks about the history of sentencing in Washington. 4. Talks about racial disparity of indeterminate guidelines. 5. Talks about the burden to the system that this holding levies. i. Longer indictments ii. Full blown jury trial during penalty phase iii. Separate trials for obstruction and perjury 6. Talks about effect on other States and Federal guidelines. C. Kennedy Dissent (Beryer joins) 1. Constitution does not prohibit the dynamic and fruitful dialogue between the judicial and legislative branches of government that has marked sentencing reform on both the state and the federal levels for more than 20 years. D. Breyer Dissent (O’Connor joins) 1. Agrees with the majority analysis but not the conclusion. 2. Sentencing factor v. element of a greater offense.
3. Talks about options that sentencing must now take one of these forms. i. Pure determinate sentencing system. – Everyone who commits robbery receives the same sentence. a. Problem is that people can commit the same crime in different ways. ii. Indeterminate sentencing – Judge has broad discretion. a. Problem is with the disparity iii. Retaining structured schemes what attempt to punish similar conduct similarly and different conduct differently, but modifying them to conform to Apprendi’s dictates. a. Problems with this plan, mostly dealing with expense iv. High sentences to crimes with long list of mitigating facts. V. Critique A. Majority 1. On surface sounds reasonable. 2. I need to do more research to determine what exactly the sentencing guidelines are. Are they mandatory or are they recommendations? 3. If mandatory then majority holding makes most sense. 4. If recommendation then holding does not make as much sense to me. B. Dissent 1 1. Criticized by the majority. 2. Main points are economics and the fact that it ramifications are great. 3. Bottom line is if the guidelines violated the 6 th amendment, they must be held unconstitutional, regardless of fact that it will cause great expense. C. Dissent 2 1. On surface I do not really understand this dissent. 2. I need to break it down more. 3. I feel like the majority holding is exactly what this dissent advocates, but somehow he comes to a different conclusion. VI. Impact A. The most significant part of this decision is the impact it will have. B. Almost all states have similar sentencing guidelines. C. Federal system has a similar sentencing guideline. E. This holding explicitly decided not to make a determination on the federal sentencing guidelines. F. 7th and 9th circuits have held that Blakely made the federal sentencing guidelines unconstitutional. 1. US v. Booker, 375 F.3d 508 (7 th Cir) 2. US v. Ameline, 376 F.3d 967 (9 th Cir. 2004) th G. 4 and 5th circuits rejected Blakely-based challenges to the guidelines. 1. US v. Hammoud, 2004 WL 1730309 2. US v. Pineiro, __ F.3d__(5 th Cir. 2004) H. 2 nd circuit decided not to decide 1. US v. Penaranda, 375 F.3d 238 (2 nd Cir. 2004)
J. Other circuits have yet to decide, but a search already shows a split among district judges K. Supreme Court is hearing two Blakely-related cases 1. US v. Fanfan i. Drug related case. ii. Defendant was sentenced to 78 months rather than the maximum of 235 months that would have been authorized preBlakely 2. US v. Boooker i. Drug related case. ii. Judge Posner reversed a 30-year sentence and remanded the case for re-sentencing, finding that a jury rather than athe judge should have determined the quantity of drugs which formed the bases for an upward departure in the defendants’ sentence. L. If Supreme Court determines that the federal sentencing guidelines violate the 6th amendment, what next? M. Effect on current state of felons? 1. Are the floodgates open to reduce the sentences of tens of thousands of prisoners? 2. Will the number of appeals overwhelm the system? N. Effect on future sentencing. 1. Currently some courts are issuing two ruling. i. One sentence to stand if the Supreme Court finds the guidelines unconstitutional. ii. One sentence to stand if the Supreme Court finds the guidelines do not violate the constitution. 2. What path do courts take in the future? i. Throw out the guidelines all together and go back to an indeterminate sentencing structure. a. Problems with this system explained in the dissenting opinions. Often sentences would show great disparity depending on what the “judge had for breakfast.” ii. Use the guidelines as the starting point, and then only apply the downward departures, not the upward departures. iii. Prosecution include all sentencing factors in the indictment creating 17 element robbery offenses. a. Problems with this system explained in the dissenting opinions. Rebutted in the majority opinions. iv. Empanel juries to determine, beyond a reasonable doubt, if certain sentencing factors have been met. a. Problems with this system explained in the dissenting opinions. Mainly dealing with expenses. But also explaining that sometimes sentencing factors can be to complex for an average lay juror to understand.
VII. Conclusion A. I need to do more research to come up with my conclusion. B. First I will predict the rulings on the upcoming supreme court decisions. C. If it looks like the guidelines will be deemed unconstitutional, then I will provide some feasible alternative solution. Likely a solution will be discussed in the upcoming Supreme Court holdings.