Benno Law Review Note

Benno Ashrafi 2/1/05 HOW TO FORM A SENTENCE: BLAKELY V. WASHINGTON REWRITES THE GUIDELINES I. INTRODUCTION II. BACKGROUND III. FACTS IV. ANALYSIS OF THE COURT’S OPINION A. Justice Scalia’s Majority Opinion B. Justice O’Connor’s Dissent C. The Majority’s Critique Of Justice O’Connor’s Dissent D. Justice Kennedy’s Dissent E. Justice Breyer’s Dissent F. The Majority’s Critique Of Justice Breyer’s Dissent V. IMPACT OF THE MAJORITY’S HOLDING A. Federal Sentencing Guidelines Resolved i. Facts of Booker and Fanfan ii. Does Blakely apply to the Federal Sentencing System? iii. What, if any, parts of the Guidelines should be severed? B. States Must Decide For Themsleves V. CONCLUSION I. INTRODUCTION How important is the Sixth Amendment right to a trial by jury? Up until June of 2004 that right had been systematically sidestepped in thousands of cases. When the Supreme Court issued a ruling in Blakely v. Washington,1 they put a stop to sidestepping the Sixth Amendment in the state of Washington. What about the rest of America? The impact of the Blakely case will be felt across the country, not just in the state of Washington. The Sixth Amendment states, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.”2 The Supreme Court has interpreted this to mean that the “Constitution gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged.” 3 The confusion lies in the distinction between 1 Blakely v. Washington, 124 S.Ct. 2531 (2004). U.S. CONST. amend. XI. 2 3 United States v. Gaudin, 515 U.S. 506, 511 (1995) (emphasis added). For purposes of this note, I will assume that all crimes discussed are nonpetty offenses, for which the right to jury trial is guaranteed by the Constitution in both state and federal criminal trials. See Baldwin v. New York, 399 U.S. 66 (1970) (providing the Sixth Amendment right to jury trial for crimes for which a sentence of more than six months in prison is possible); Duncan v. Louisiana, 391 U.S. 145 (1968) (incorporating under the 14th Amendment full federal constitutional jury trial rights as requirements for state criminal trials). Benjamin J. Priester, Sentenced For A "Crime" The Government Did Not Prove: Jones V. United States And The Constitutional Limitations On Factfinding By Sentencing Factors Rather Than Elements Of The Offense, 61 LAW & CONTEMP. PROBS. 249 (Autumn 1998) 2 elements of the crime and sentencing factors. In Blakely v. Washington the Supreme Court erases the distinction for constitutional purposes. Part II of this note will briefly discuss the history of sentencing procedures in relation to the Sixth Amendment.4 Part III will discuss the facts of the Blakely case,5 while part IV will discuss the courts analysis and reasoning associated with the holding in Blakely.6 Part V will take look at the impact the Blakely case will have on sentencing in the future.7 II. BACKGROUND The Sentencing Reform Act of 1984 changed fundamentally sentencing of a criminal defendant in federal court.8 Prior to this Act judges had broad discretion in setting an appropriate sentence within the statutory limits for each offense. 9 The statutory limits for each offense tend to be quite broad, from ten years to life in some cases.10 The Parole Commission then fixed the actual term of imprisonment by deciding when the defendant should be released 4 See infra notes 8-20 and accompanying text. See infra notes 21-41 and accompanying text. See infra notes 42-208 and accompanying text. See infra notes 209-310 and accompanying text. 5 6 7 8 The Truth About Mandatory Sentencing Guidelines, available at http://www.pixi.com/~itmc/Sentencing.html. 9 Id. 10 United States v. Booker, 375 F.3d 508, 509 (7th Cir. 2004) (describing the statutory maximum and minimum sentence for the crime of possession with intent to distribute at least 50 grams of cocaine base). The statute prescribes a minimum sentence of 10 years in prison and a maximum sentence of life. 21 U.S.C. § 841(b)(1)(A)(iii). 3 on parole.11 Supporters of Sentencing Reform Act faulted the existing system in that it created unwarranted disparities in the sentences imposed on similarly situated defendants, and created uncertainty in the length of time that defendants would serve in prison. 12 To remedy these flaws, Congress abolished, with the Sentencing Reform Act, the existing parole system and replaced it with a more determinate method of fixing sentences, which based all sentences on sentencing guidelines to be promulgated by a newly created United States Sentencing Commission. 13 The Sentencing Reform Act directed the Sentencing Commission to promulgate narrow sentencing guidelines for every federal offense, and to ensure that the guidelines provided certainty and fairness in achieving the four goals of sentencing that the Act recognized: just punishment, deterrence, incapacitation, and rehabilitation. 14 The Sentencing Guidelines is essentially a grid with a vertical and horizontal axis. 15 The vertical axis represents the offense level and can range from 1 to 43. 16 The criminal history category, ranging from I to VI, runs along the horizontal axis. 17 Numerous states have enacted similar guideline systems. A sentencing guidelines range is established in each cell in the 11 The Truth About Mandatory Sentencing Guidelines, available at http://www.pixi.com/~itmc/Sentencing.html. 12 13 Id. Id. Id. 14 15 The Massachusetts Court System, Sentencing Guidelines Legislation Background, available at http://www.mass.gov/courts/admin/sentcomm/background.html. 16 Federal Sentencing Guidelines Manual, Commentary to Sentencing Table, Ch. 5 Pt. A (Nov. 2002). 17 Id. 4 sentencing grid where the offense seriousness level and the criminal history category intersect. 18 A judge is then required to sentence a defendant within the sentencing range unless he can set forth additional findings that require a departure, either upward or downward. 19 Because the range of sentence was greatly restricted by the Guidelines, more uniform sentences were imposed.20 III. FACTS Ralph Howard Blakely, Jr. married his wife Yolanda in 1973. 21 After he was diagnosed with psychological and personality disorders, his wife ultimately filed for divorce. 22 In 1998, he abducted her from their home in Grant County, Washington, binding her with duct tape and forcing her at knifepoint into a wooden box in the bed of his pickup truck. 23 During the 18 The Massachusetts Court System, Sentencing Guidelines Legislation Background, available at http://www.mass.gov/courts/admin/sentcomm/background.html. 19 The Massachusetts Court System, Sentencing Guidelines Legislation Background, available at http://www.mass.gov/courts/admin/sentcomm/background.html. 20 The Truth About Mandatory Sentencing Guidelines, available at http://www.pixi.com/~itmc/Sentencing.html (“The Sentencing Reform Act stipulated that the maximum term of imprisonment specified in any guideline range may not exceed the minimum prison term by more than 25%”). 21 Blakely v. Washington, 124 S.Ct. 2531, 2534 (2004). Id. Id. 22 23 5 kidnaping, he implored her to dismiss the divorce suit and related proceedings. 24 Blakely drove his wife to a friend‟s house in Montana where he was arrested after the friend called the police. 25 The State charged Blakely with first-degree kidnaping, however, upon reaching a plea agreement, it reduced the charge to second-degree kidnaping involving domestic violence and use of a firearm. 26 Blakely entered a guilty plea admitting the elements of second-degree kidnapping and the domestic-violence and firearm allegations, but no other relevant facts. 27 The case then went on to sentencing. 28 In Washington, second-degree kidnaping is a class B felony for which state law provides that the maximum term of confinement is ten years.29 Other provisions of state law, however, further limit the range of sentences a judge may impose.30 “Washington‟s Sentencing Reform Act specifies, for [Blakely‟s] offense of seconddegree kidnapping with a firearm, a „standard range‟ of 49 to 53 months.31 A judge must find substantial and compelling reasons to impose a sentence above the standard range. 32 In addition, 24 Id. Id. 25 26 Id. The Court references Wash. Rev. Code Ann. §§ 9A.40.020(1), 9A.40.030(1), 10.99.020(3)(p), 9.94A.125. Id. 27 Id. at 2534-35. Id. at 2535. Id. The Court references Wash. Rev. Code Ann. §§ 9A.40.030(3), 9A.20.021(1)(b). Id. Id. 28 29 30 31 Id. The Court references Wash. Rev. Code Ann. §§ 9.94A.320, 9.94A.360, 9.94A.310(1), 9.94A.310(3)(b). Id. 32 Id. citing Wash. Rev. Code Ann § 9.94A.120(2). 6 to impose a sentence above the standard range, the judge must set forth findings of fact and conclusions of law supporting it. 33 In line with the plea agreement, the State recommended a sentence within the standard range of 49 to 53 months. 34 The judge, however, rejected the State‟s recommendation and imposed an exceptional sentence of 90 months. 35 The judge “justified the sentence on the ground that petitioner had acted with „deliberate cruelty,‟ a statutorily enumerated ground for departure.” 36 Blakely objected to the exceptional sentence and the judge conducted a 3-day bench hearing.37 Based on the hearing the judge concluded: The defendant‟s motivation to commit kidnapping was complex, contributed to by his mental condition and personality disorders, the pressures of the divorce litigation, the impending trust litigation trial and anger over his troubled interpersonal relationships with his spouse and children. While he misguidedly intended to forcefully reunite his family, his attempt to do so was subservient to his desire to terminate lawsuits and modify title ownerships to his benefit. The defendant‟s methods were more homogeneous than his motive. He used stealth and surprise, and took advantage of the victim‟s isolation. He immediately employed physical violence, restrained the victim with tape, and threatened her with injury and death to herself and others. He immediately coerced the victim into providing information by the threatening application of a knife. He violated a subsisting restraining order. 38 33 Id. citing Wash. Rev. Code Ann § 9.94A.120(3). Id. Id. 34 35 36 Id. The judge found other aggravating factors, but the Court of Appeals rejected those and affirmed the sentence solely on the finding of deliberate cruelty. Id. at n.4. 37 Id. Id. at 2535-36 38 7 The judge maintained the exceptional sentence on the basis of deliberate cruelty. 39 Blakely appealed and the Washington State Court of Appeals affirmed the sentence. 40 The Washington Supreme Court denied review and the case went to the United States Supreme Court.41 IV. ANALYSIS OF THE COURT’S OPINION A. Justice Scalia’s Majority Opinion In a 5-4 decision, Justice Scalia delivered the opinion of the Court, and was joined by Justices Stevens, Souter, Thomas, and Ginsburg.42 Justice Scalia began by pointing out that this case requires an application of the rule expressed in Apprendi v. New Jersey: “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.” 43 He emphasized the importance of this rule by explaining that the rule reflects two very important tenets of common-law jurisprudence: “that the „truth of every accusation‟ against a defendant „should afterwards be confirmed by the unanimous suffrage of twelve of his equals and 39 Id. at 2536. Id. Id. Id. at 2534. Id. (citing Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). 40 41 42 43 8 neighbours,‟ 44 and that „an accusation which lacks any particular fact which the law makes essential to the punishment is . . . no accusation within the requirements of the common law.‟” 45 Justice Scalia briefly summarized Apprendi as a case involving a New Jersey hate-crime statute that authorized a 20-year sentence, in lieu of the usual 10-year maximum, if the judge found the crime to have been motivated by racial or other biases. 46 He went on to describe that, in Ring v. Arizona,47 the Court applied Apprendi to an Arizona law that allowed the judge to impose the death penalty if he found certain aggravating factors. 48 In both cases, the Supreme Court concluded that the sentences violated the defendant‟s constitutional rights because the “the judge had imposed a sentence greater than the maximum he could have imposed under state law without the challenged factual finding. 49 Justice Scalia goes on to analogize the Blakely case. In Blakely, the defendant was given an exceptional sentence because the judge found he acted with deliberate cruelty. 50 Without such a finding by the judge, the sentence imposed could be no greater than the 53-month statutory maximum. 51 Justice Scalia addresses the State‟s argument that “there was no Apprendi violation because the relevant „statutory maximum‟ is not 53 months, but the 10-year maximum 44 Id. at 2536 (citing 4 W. Blackstone, Commentaries on the Laws of England 343 (1769)). Id. (citing 1 J. Bishop, Criminal Procedure § 87, p.55 (2d ed. 1872)). Id. at 2537. Ring v. Arizona, 536 U.S. 584 (2002). Blakely, 124 S.Ct. at 2537. Id. Id. Id. 45 46 47 48 49 50 51 9 for class B felonies in § 9A.20.021(1)(b).” 52 He then goes on to state the unequivocal rule established in this case: “that the „statutory maximum‟ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”53 He re-phrases the rule and states that “the relevant „statutory maximum‟ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without additional findings.” 54 Justice Scalia reasons that sentencing a defendant to a term the jury‟s verdict alone will not allow is outside the judge‟s proper authority. 55 Next, Justice Scalia addresses the State‟s argument that the sentence should be upheld as it is analogous to McMillan v. Pennsylvania56 and Williams v. New York.57 He distinguished and dismissed each case. First he points out that the McMillan case dealt with statutory minimums and the Williams case involved an indeterminate-sentencing scheme.58 Neither case was on point because they did not deal with a sentence greater than what was authorized on the basis of the verdict alone.59 52 Id. Id. Id. Id. McMillan v. Pennsylvania, 477 U.S. 79 (1986). Williams v. New York, 337 U.S. 241 (1949). Blakely, 124 S.Ct. 2538. Id. 53 54 55 56 57 58 59 10 The State also tried to distinguish Blakely from Apprendi and Ring by pointing out that the enumerated grounds for departure in Blakely are illustrative rather than exhaustive. 60 Justice Scalia dismisses this argument as unpersuasive. 61 He explains that requiring the judge to find a specific aggravating fact or any aggravating fact is irrelevant; it remains “that the jury‟s verdict alone does not authorize the sentence.” 62 Justice Scalia then declares the defendant‟s sentence invalid because it does not comply with the Constitution.63 He goes on to explain that the holding is consistent with longstanding precedent and necessary to give “intelligible content to the right of jury trial.” 64 He explains that the voting process ensures the people‟s ultimate control in the legislative and executive branches, and the jury system does the same in the judicial branch. 65 He goes on to say that the Framers intended the judge‟s authority to sentence be derived wholly from the jury‟s verdict. 66 Justice Scalia discusses two alternatives to the holding in Blakely. The first is that the legislature can label any fact as either an element of the crime or a sentencing factor, and the jury must only find the facts labeled as elements. 67 He provides the example that a man convicted by 60 Id. Id. Id. Id. Id. Id. at 2539 Id. Id. 61 62 63 64 65 66 67 11 a jury for illegally possessing a firearm could be sentenced for committing murder under this scheme.68 The second alternative is one where the legislature establishes legally essential sentencing factors within limits.69 The limits would be crossed when “the sentencing factor is a „tail which wags the dog of the substantive offense.‟” 70 The judiciary would ultimately determine if the legislature has crossed the limits and gone too far.71 Justice Scalia criticizes the subjectivity of this standard and points to sentences that were upheld even though they may be considered as pushing the limits. 72 He goes on to state that the Sixth Amendment can not incorporate such a “manipulable” standard rather than Apprendi’s bright-line rule because the Framers put the jury-trial guarantee in the Constitution precisely because “they were unwilling to trust the government to mark out the role of the jury.” 73 68 Id. Id. Id. (quoting McMillan v. Pennsylvania, 477 U.S. 79, 86 (1986). Id. 69 70 71 72 Id. at 2539-40. Justice Scalia first points out that the crime Blakely was sentenced to, seconddegree kidnapping with deliberate cruelty is essentially the same as first-degree kidnapping, the very charge he had avoided by pleading to a lesser offense. Id. He explains that the 90-month sentence exceeded the 53-month standard maximum by almost 70%. Id. He goes on to list cases where the Washington Supreme Court has upheld sentences 15 times the standard maximum. Id. at 2540 (referencing State v. Oxborrow, 106 P.2d 1123 ( Wash. 1986), where there was a 15-year exceptional sentence upheld in lieu of the 1-year standard maximum, and State v. Branch, 919 P.2d 1228 (Wash. 1996) where a 4-year exceptional sentence was upheld in lieu of a 3-month standard maximum). 73 Id. 12 Justice Scalia goes on to discuss the various dissents, which I will reference later, 74 and concludes that the judgment of the Washington Court of Appeals is reversed, and the case is remanded.75 B. Justice O’Connor’s Dissent The first dissent is written by Justice O‟Connor and she is joined by Justice Breyer. 76 The Chief Justice Renquist and Justice Kennedy join in part. 77 Justice O‟Connor begins by stating her conclusion that when faced with the burdens imposed by the holding in this case, “Congress and States will either trim or eliminate altogether their sentencing guidelines schemes and, with them, 20 years of sentencing reform.” 78 She goes on to state that the effect of the holding will be “greater judicial discretion and less uniformity in sentencing.”79 She follows with the point that she does not believe the Framers would consider such a result required by the Constitution.80 Justice O‟Connor first looks at the history of sentencing in the state of Washington. She points out that prior to 1981, Washington used an indeterminate scheme much like those used in 74 See infra notes 122-38, 199-208 and accompanying text. Id. at 2543. Id. Id. Id. Id. Id. at 2543-44. 75 76 77 78 79 80 13 most other States and the Federal system. 81 There were three classes of felonies each with a broad range of authorized sentences. 82 She goes on to state that judges had broad discretion to sentence defendants to prison terms falling anywhere between the statutory range, including probation.83 Justice O‟Connor describes this system as producing severe disparities, often linked to racial bias, in sentences of defendants that had committed similar offenses. 84 To remedy the apparent inconsistency in sentences, Washington passed the Sentencing Reform Act of 1981. 85 The act did not alter the three classes of felonies, 86 it merely placed constraints on the judges discretion to sentence defendants. 87 Justice O‟Connor goes on to say that the determinate sentencing system created by the Reform Act of 1981 has not disregarded the principles of due process and the jury trial right, as the majority suggests. 88 She points out that prior to the Act, a defendant in Blakely‟s position, 81 Id. at 2544. 82 Id. Justice O‟Connor points out that Washington‟s criminal code consisted of “class A” felonies, carrying a sentence of 20 years to life, “class B” felonies, carrying a sentence of 0 to 10 years, and “class C” felonies, carrying a sentence of 0 to 5 years. Id. (referencing Wash. Rev. Code Ann § 9A.20.020 (2000)). 83 Id. Id. Id. 84 85 86 Id. Justice O‟Connor points out that the act did not reclassify any substantive offenses nor did it increase any of the statutory sentencing ranges, but it did eliminate the statutory mandatory minimum for “class A” felonies. Id. (citing 1981 Wash. Laws ch. 137, p. 534). 87 Id. Id. at 2445. 88 14 charged with second degree kidnapping, could receive a sentence ranging from probation to 10 years in prison. 89 The broad range allowed the sentencing judge to make any determination of sentence using any factors he wished.90 She goes on to state that after the passage of the Reform Act, the same defendant knows what his presumptive sentence will be, and what factors a sentencing judge will consider when deciding to sentence him outside of that range. 91 Justice O‟Connor concludes that the Act did not increase the statutory maximum sentences, it merely allowed defendants to know, much more than before, the real consequences of their actions. 92 Justice O‟Connor goes on to discuss the reduction in sentencing disparities, especially as it relates to race, since the passage of the Act. 93 Justice O‟Connor follows with an analysis on the impact of the majority‟s holding. She points out that under the majority‟s approach, “any fact that increases the upper bound on a judge‟s sentencing discretion is an element of the offense.” 94 This means that facts historically taken into consideration only by the sentencing judge “–such as drug quantity, role in the offense, risk of bodily harm – all must now be charged in an indictment and submitted to a jury.” 95 She claims that such a burden will threaten the continued use of sentencing guideline 89 Id. Id. Id. Id. 90 91 92 93 Id. (citing Boerner & Lieb, Sentencing Reform in the Other Washington, 28 CRIME and J UST. 71 (M. Tonry ed.2001)). 94 Id. at 2546. Id. 95 15 systems.96 She goes on to mention additional complications that will result from the majority ruling. Justice O‟Connor points out that such “character evidence” as prior bad acts or criminal history has traditionally been off limits during the guilt phase of a trial because it has the potential to be too unfairly prejudicial towards the defendant. 97 If the legislature wishes to impose uniform consideration of such factors for sentencing reasons, the State may have to have a separate jury trial during the sentencing phase of the proceeding. 98 Justice O‟Connor goes on to talk about other complications that will result from the majority‟s holding. She mentions that some facts to be considered for sentencing purposes will not be discovered prior to trial, which makes it impossible to charge these facts in the indictment.99 She specifically mentions obstruction of justice as such a fact. 100 If a defendant acts in an obstructive manner during the trial, it can only be accounted for if the judge has a wide range available for sentencing or if there is a separate prosecution for the obstruction charge. 101 She talks about other facts that arise during the prosecution of a drug distribution defendant. 102 For example, the facts may reveal that the defendant sold primarily to children. 103 If the 96 Id. Id. (referring to Fed. Rule Evid. 404). Id. Id. Id. Id. Id. Id. 16 97 98 99 100 101 102 103 legislature wishes to increase sentence for such a fact, they will either need to provide the judge with a wide range of personal discretion or bring a separate proceeding for the aggravated offense.104 The latter choice will likely be unavailable because a separate prosecution can be barred by the double jeopardy clause. 105 Justice O‟Connor draws the conclusion that States and the Federal Government will not be able to bear all of these additional costs, and the inevitable result will be an increase in judicial discretion. 106 Justice O‟Connor continues by stating that the Reform Act of 1981 did not increase the statutory maximum sentence that the defendant faced. 107 Moreover, the defendant was aware that he faced a potential maximum of 10 years, he was aware of the factors that would play a role in his sentencing, his jury trial right was vindicated as he was informed of the stakes of risking trial, and he was protected against prejudice because characteristics such as race could not impact his sentence. 108 Justice O‟Connor accuses the majority of basing their decision on “doctrinaire formalism” rather than proper principles. 109 She goes on to state that a rule of 104 Id. 105 Id. at 2546-47 (citing Blockburger v. United States, 284 U.S. 299, 52 (1932) for the proposition that prosecution for separate offenses is not allowed unless the two offenses both have at least one element that the other does not). 106 Id. at 2547. Id. Id. Id. 107 108 109 17 deferring to legislative labels (elements versus sentencing factors) would be just as formal and would be more consistent with previous Supreme Court holdings. 110 Justice O‟Connor goes on to address the majority argument that adherence to such an approach could produce absurd results. 111 She states that a “built-in political check” will prevent lawmakers from altering elements and sentencing factors such that the real prosecution of crimes will be shifted to the penalty phase. 112 She goes on to claim that adherence to the majority approach will produce results “that disserve the very principles the majority purports to vindicate.” 113 Justice O‟Connor goes on to discuss the impact the majority‟s holding will have on the justice system and the nation as a whole. She explains that Washington‟s guideline system is quite similar to those of many other states, and that of the Federal Government. 114 She states that 110 Id. at 2548. Justice O‟Connor cites the following cases: Almendarez-Torres v. United States, 523 U.S. 224 (1998) (fact of prior convictions not an element of aggravated recidivist offense); United States v. Watts, 519 U.S. 148 (1997) (per curiam) (acquittal of offense no bar to consideration of underlying conduct for purposes of guidelines enhancement); Witte v. United States, 515 U.S. 389 (1995) (no double jeopardy bar against consideration of uncharged conduct in imposition of guidelines enhancement); Walton v. Arizona, 497 U.S. 639 (1990) (aggravating factors need not be found by a jury in capital case); Mistretta v. United States, 488 U.S. 361 (1989) (Federal Sentencing Guidelines do not violate separation of powers); McMillan v. Pennsylvania, 477 U.S. 79 (1986) (facts increasing mandatory minimum sentence are not necessarily elements). Id. 111 Id. See supra note 61 and accompanying text (referring to the example of a man being sentenced for murder after being convicted by a jury of illegally possessing a firearm). 112 Id. Id. 113 114 Id. at 2548-49. Justice O‟Connor points to ALASKA STAT. § 12.55.155 (2003); ARK. CODE ANN . § 16-90-804 (Supp. 2003); F LA. STAT. § 921.0016 (2003); KAN . STAT. ANN. § 21-4701 et seq. (2003); MICH. COMP. LAWS ANN. § 769.34 (West Supp. 2004); MINN . STAT. § 244.10 (2002); N.C. GEN. STAT . § 15A-1340.16 (Lexis 2003); ORE. ADMIN. R ULE § 213-008-0001 18 the majority‟s holding “casts constitutional doubt over them all.” 115 The result will be a flooding of the court system as every sentence imposed since Apprendi was decided in 2000 will be open to attack.116 She goes on to talk about the dilemma trial courts will face as well. 117 “Do courts apply the guidelines as to mitigating factors, but not as to aggravating factors?” 118 She continues, “Do they jettison the guidelines altogether?” 119 Justice O‟Connor makes the final point that the Federal Guidelines are not likely to be distinguished from the Washington State Guidelines. 120 She ends her dissent with a dramatic touch, “What I have feared most has now come to pass: Over 20 years of sentencing reform are all but lost, and tens of thousands of criminal judgments are in jeopardy.” 121 (2003); 204 PA. CODE § 303 et seq. (2004), reproduced following 42 P A. CONS. STAT . ANN. § 9721 (Purdon‟s Supp. 2004); 18 U.S.C. § 3553; 28 U.S.C. § 991 et seq. Id. 115 Id. at 2549. 116 Id. Justice O‟Connor points out a case establishing a new rule does not apply retroactively on habeas review. Id. (citing Schriro v. Summerlin, ante, 124 S.Ct. 2519 (2004)). However, since the majority argues that the Blakely holding is an application of the holding in Apprendi, all sentences imposed after Apprendi could be open to attack. Id. (citing Teague v. Lane, 489 U.S. 288, 301 (1989) (plurality opinion) for the contention that “[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant‟s conviction became final”). Justice O‟Connor reveals staggering number of sentences that could be subject to attack. Between June 27, 2000, when Apprendi was decided, and march 31, 2004, there have been over 200,000 defendants sentenced in federal court alone. Id. n. 2 (citing Memorandum from Carl Schlesinger, Administrative Office of the United States Courts, to Supreme Court Library (June 1, 2004)). 117 Id. Id. Id. Id. at 2549-50. Id. at 2550. 118 119 120 121 19 C. The Majority’s Critique Of Justice O’Connor’s Dissent Justice Scalia, in the majority, addresses a couple of Justice O‟Connor‟s points. First he refers to Justice O‟Connor‟s point that a built-in political check will prevent legislatures from manipulating elements and sentencing factors in such a fashion as to result in the sentencing factors becoming the “tail that wags the dog.” 122 He points out that “the Framers‟ decision to entrench the jury-trial right in the Constitution shows that they did not trust government to make political decisions in this area.” 123 Justice Scalia also addressed the issue of obstruction-of-justice that Justice O‟Connor brings up.124 His response is: “Why perjury during trial should be grounds for a judicial sentence enhancement on the underlying offense, rather than an entirely separate offense to be found by a jury beyond a reasonable doubt . . . is unclear.” 125 Justice Scalia devotes most of his attention focused on Justice O‟Connor‟s dissent to her comment about increased judicial discretion. 126 Justice Scalia characterized her argument as such: “Justice O‟C[onnor] argues that, because determinate sentencing schemes involving judicial factfinding entail less judicial discretion than indeterminate schemes, the 122 See infra notes 104-05 and accompanying text. Blakely, 124 S.Ct. at 2359 n. 10. See infra notes 92-94 and accompanying text. Blakely, 124 S.Ct at 2340 n. 11 (internal citation omitted). See infra notes 72-74 and accompanying text. 123 124 125 126 20 constitutionality of the latter implies the constitutionality of the former.” 127 Justice O‟Connor does not make this argument outright but she does dance around it. Justice Scalia responds to this argument by first pointing out that the Sixth Amendment does not address limitations on judicial power, instead it reserves jury power. 128 Indeterminate sentencing does increase judicial discretion “but not at the expense of the jury‟s traditional function of finding the facts essential to lawful imposition of the penalty.” 129 The most important factor to be considered is the defendants legal right to a lesser sentence. 130 Justice Scalia goes on to give a poignant example. In an indeterminate sentencing scheme the case may be that a judge can sentence a defendant from 10 to 40 years if he is convicted of burglary. 131 In such a system, “every burglar knows he is risking 40 years in jail.” 132 In a determinate system it may be the case that burglary is punishable with a 10-year sentence, and another 30 added for the use of a gun.133 In such a system, an unarmed burglar is legally entitled to no more than a 10year sentence. 134 The Constitution demands that only a jury shall take away that legal entitlement.135 127 Blakely, 124 S.Ct. at 2540. Id. Id. Id. Id. Id. Id. Id. Id. 128 129 130 131 132 133 134 135 21 Justice Scalia goes on to say that he disagrees with Justice O‟Connor‟s belief that the net effect of the holding will be an increase in judicial power.136 He explains that it is not necessarily true that States will revert back to an indeterminate sentencing scheme. He points out that the net effect may simply be that determinate systems will remain intact with the jury being required to find facts which increase a defendant‟s sentence. 137 He points to the State of Kansas as an example. 138 D. Justice Kennedy’s Dissent The second dissent is written by Justice Kennedy and joined by Justice Breyer. 139 Justice Kennedy writes a brief dissent that starts by echoing Justice O‟Connor‟s dissent. 140 He then makes clear that he would like to add one point: There is a “fundamental principle under our constitutional system that different branches of government „converse with each other on matters of vital common interest.‟” 141 He goes on to explain that sentencing guidelines are a prime 136 See infra note 73 and accompanying text. Blakely, 124 S.Ct. 2542. 137 138 Id. Justice Scalia explains that the Kansas Supreme Court extended Apprendi to the State‟s determinate-sentencing system in State v. Gould, 271 Kan. 394, 404-414 (2001). The Kansas legislature‟s response was not to strike the determinate sentencing system altogether, but to apply Apprendi’s requirements to its current regime. Id. (citing Act of May 29, 2002, ch. 170, 2002 KAN . SESS. LAWS pp. 1018-1023 (codified at KAN. STAT . ANN. § 21-4718 (2003 Cum. Supp.))). 139 Id. at 2550. Id. Id. (quoting Mistretta v. United States, 488 U.S. 361, 408 (1989). 140 141 22 example of this collaborative process. 142 Judges and Legislators have spent years developing a sentencing systems that are designed to rectify the problems of indeterminate sentencing schemes.143 Justice Kennedy concludes by making it clear that he dissents because the Constitution does not require the majority decision, and because over 20 years of “fruitful dialogue” on sentencing reform will be lost. 144 E. Justice Breyer’s Dissent The third dissent is written by Justice Breyer, with whom Justice O‟Connor joins. 145 Justice Breyer focuses on the most important issue: How are elements of a crime and sentencing factors to be treated? 146 The majority concludes they should be treated exactly the same.147 Justice Breyer says that he agrees with the analysis of the majority, but not the conclusion. 148 More specifically he states, “I agree that . . . the difference between a traditional sentencing factor and an element of a greater offense often comes down to a legislative choice about which 142 Id. at 2551. Id. Id. Id. at 2551. Id. at 2551-52. Id. at 2552. Id. 143 144 145 146 147 148 23 label to affix. But I cannot jump from there to the conclusion that the Sixth Amendment always requires identical treatment of the two.” 149 Justice Breyer spends much of his dissent explaining what direction sentencing will take in the future. He states, “As a result of the majority‟s rule, sentencing must now take one of three forms, each of which risks either impracticality, unfairness, or harm to the jury trial right the majority purports to strengthen.” 150 He goes on to state that it is this outcome that leads him to believe the majority‟s Sixth Amendment interpretation is not right. 151 The first option, according to Justice Breyer, is a “pure determinate” sentencing system.152 In this system each crime would carry a specific sentence. 153 For example, everyone convicted of robbery would receive a five year sentence. 154 Justice Breyer points out that the problem with this system is not disparity, as was the problem with indeterminate sentencing schemes, but uniformity. 155 In other words, criminals, who committed the same crime in very different ways, would receive identical punishments.156 “When dramatically different conduct ends up being punished the same way, an injustice has taken place.” 157 The other problem with 149 Id. Id. Id. Id. Id. at 2553. Id. Id. Id. Id. 150 151 152 153 154 155 156 157 24 this system, according to Justice Breyer, is that prosecutors have a tremendous amount of power “to manipulate sentences through their choice of charges.” 158 He points out that prosecutors can charge defendants with crimes bearing higher sentences and defendants, “knowing that they will not have a chance to argue for a lower sentence in front of a judge, may plead to charges that they might otherwise contest.” 159 The second option is to return back to an indeterminate sentencing system. 160 In this type of system, the length of a defendant‟s sentence is almost entirely within the discretion of the judge.161 The problems with this type of system are obvious, including race-based disparities in the punishment of defendants who committed similar crimes. 162 Justice Breyer explains that a return to this type of system would take away much of the jury‟s power. 163 The jury would be responsible for finding a defendant guilty, but would have no control over the sentence itself. 164 The third option, as Justice Breyer explains, “is that which the Court seems to believe legislators will in fact take.” 165 This approach takes the existing structured sentencing schemes and modifies them to conform with the majority holding. 166 Judges would be able to find 158 Id. Id. Id. Id. Id. at 2554. Id. Id. Id. Id. 159 160 161 162 163 164 165 166 25 mitigating facts and lower a sentence, but would not be able to increase a sentence unless the aggravating facts were proved to a jury beyond a reasonable doubt. 167 Justice Breyer attempts to explore how this would work in practice. He explains that this option could work in one of two ways.168 The first way would be for legislatures to enact a “highly calibrated” version of the pure determinate system. 169 They would subdivide each crime into a list of complex crimes. 170 For example, the legislature might enact a robbery statute that increases punishment depending on various factors such as the use of a firearm, value of property loss, extent of injury cased, etc. 171 Justice Breyer suggests the problem with this system is that the prosecutor controls the punishment through control of the precise charge.172 He argues that this would move the system away from the most important goal: “rough uniformity of punishment for those who engage in roughly the same real criminal conduct.173 Justice Breyer goes on to show that this system greatly prejudices defendants who seek trial. He gives the example of a defendant who is charged with the specific offense of possession 167 Id. Id. Id. at 2555. Id. at 2554. Id. at 2555. Id. Id. 168 169 170 171 172 173 26 of more than 500 grams of cocaine. 174 This defendant is in a position where he is to argue, “I did not sell drugs, and if I did, I did not sell more than 500 grams.”175 Justice Breyer explains that the second way to make sentencing guidelines compliant with the majority holding, would be to require two juries for each defendant: “one jury to determine guilt of the crime charged, and an additional jury to try the disputed facts” that would aggravate the sentence. 176 Justice Breyer‟s major concern with this type of system is the cost. 177 He goes on to explain that the majority can only see this as a feasible approach because over 90% of defendants never go to trial.178 He predicts that the complexity and added cost of bifurcated trials will likely lead to even more plea bargaining. 179 This means that punishments will not be set by judges or juries, but by “advocates acting under bargaining constraints.” 180 Justice Breyer goes on to explain that punishments will not reflect a criminals real conduct, but the “portion of the offender‟s conduct that a prosecutor decides to charge and prove.” 181 174 Id. Id. Id. at 2556. 175 176 177 Id. Justice Breyer explains that bifurcated trials are costly, “both in money and in judicial time and resources.” Id. He bases this belief on the cost of capital cases. Id. (citing Kozinski & Gallagher, Death: The Ultimate Run-On Sentence, 46 CASE W. RES. L. REV. 1, 13-15, and n. 64 (1995) (estimating the costs of each capital case at around $1 million more than each noncapital case)). 178 Id. (citing Bibas, 110 YALE L.J., at 1150 and n. 330 as reporting that in 1996, fewer than 4% of adjudicated state felony defendants have jury trial, 5% have bench trials, and 91% plead guilty). 179 Id. at 2557. Id. Id. 180 181 27 Justice Breyer follows by touching upon a fourth option. Legislatures may rewrite their criminal codes, attaching high sentences to every crime, followed by a long list of mitigating factors.182 He goes on to explain that such rewrites would be highly unlikely. 183 Justice Breyer continues by explaining that history does not require the majority‟s decision.184 Historically, judges had discretion to “vary the sentence, within the range provided by the statute, based on facts not provided at the trial.” 185 In this case, the statute sets the maximum term of imprisonment at 10 years. 186 Determinate sentencing schemes, like Washington‟s, do not affect the statutory maximum, nor do they establish new elements of the crime.187 Justice Breyer explains that they limit the sentencing judge‟s discretion, which previously was unchecked, within the statutory range. 188 He explains that kidnapers in Washington know that they are risking up to 10 years in prison. 189 He continues by making the 182 Id. at 2558. Id. Id. 183 184 185 Id. at 2559. Justice Breyer cites 1 J. Bishop, Criminal Procedure § 87, p.55 (2d ed. 1872) for the contention that “within the limits of any discretion as to the punishment which the law may have allowed, the judge, when he pronounces sentence, may suffer his discretion to be influenced by matter shown in aggravation or mitigation, not covered by the allegation of the indictment.” Id. 186 Id. (citing W ASH . REV . CODE ANN. §§ 9A.40.030(3), 9A.20.021(1)(b) (2000). Id. Id. Id. 28 187 188 189 point that these types of sentencing schemes enhance the Sixth Amendment, and afford additional due process to defendants in the form of sentencing hearings before a judge. 190 Justice Breyer then discusses the risk of unfairness in allowing the legislature to make labeling decisions between elements and sentencing factors. 191 There is a risk that the sentencing factors become more important than the elements. 192 There is a risk that the judge would be able to sentence a defendant for murder after being convicted of illegally possessing a firearm. 193 Justice Breyer explains that the Due Process Clause is designed to take care of such problems, and that judges are capable of using their own judgment to resolve such an issue. 194 Justice Breyer points out that the alternatives are worse, practically and constitutionally. 195 Justice Breyer ends his dissent by discussing some of the questions that are left unanswered by the majority‟s holding. He mentions the Federal Sentencing Guidelines, and he is unsure how they can be distinguished. 196 He explains that federal and state prosecutors must move forward guessing about the following questions: “(1) Does today‟s decision apply in full force to the Federal Sentencing Guidelines? (2) If so, must the initial indictment contain all sentencing factors, charged as „elements‟ of the crime? (3) What, then are the evidentiary rules? . . . (4) How are juries to deal with highly complex or open-ended Sentencing Guidelines 190 Id. at 2560. Id. Id. See infra notes 61-62 and accompanying text. Blakely, 124 S.Ct. at 2560. Id. Id. at 2561. 29 191 192 193 194 195 196 obviously written for application by an experienced trial judge?” 197 Justice Breyer then calls for further discussion on the concerns he has raised. 198 F. The Majority’s Critique Of Justice Breyer’s Dissent Justice Scalia addresses Justice Breyer‟s contention that the majority holding creates a system that is “unfair” to defendants. Justice Breyer supports his contention by explaining that under any new system a defendant that pleads guilty will not have an opportunity to argue sentencing factors to a judge. 199 In addition, defendants who go to trial are put in a position of exposing prejudicial information. 200 Justice Scalia responds that a defendant can waive certain rights and submit to judicial factfinding on particular elements or sentencing factors. 201 Defendants are free, if they think the costs outweigh the benefits, to render this case inapplicable, to waive their right to jury on every element and/or sentencing factor. 202 He also points out that the National Association of Criminal Defense Lawyers has submitted a brief in favor of the majority holding. 203 197 Id. at 2561-62. Id. at 2562. Id. at 2541; See infra notes 173-75 and accompanying text. See infra notes 168-69 and accompanying text. Blakely, 124 S.Ct. at 2541. Id. 198 199 200 201 202 30 Justice Scalia goes on to address Justice Breyer‟s contention that the majority holding will lead to an increased number of plea bargains. 204 Justice Scalia explains the Sixth Amendment is not concerned with plea bargaining. It was written to guarantee the right to a jury trial, not to require defendant‟s to exercise that right. 205 Justice Scalia also addresses Justice Breyer‟s point that juries may not be capable of handling sentencing issues. 206 Justice Scalia‟s response is that some argue that justice should be left entirely in the hands of professionals. 207 That is not the system in America, and every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment. 208 V. IMPACT OF THE MAJORITY’S HOLDING Perhaps the most interesting impact of the Blakely holding is that, “[n]o one is certain how to proceed in the wake of Blakely.” 209 While the Blakely case directly spoke about Washington State sentencing guidelines, it has an effect on the Federal Guidelines as well as 203 Id. at 2542. See infra notes 173-75 and accompanying text. Blakely, 124 S.Ct. at 2542. See infra note 191 and accompanying text. Blakely, 124 S.Ct. at 2543. Id. Nancy King, Beyond Blakely, 51-DEC FED. LAW. 53, 57. 31 204 205 206 207 208 209 many state guidelines. 210 If various states find the Blakely holding to apply to their sentencing schemes, they must determine how to proceed. The state of Kansas has modified their guidelines “so that every fact necessary to support a guideline sentence must be found by a jury „beyond a reasonable doubt.” 211 The Minnesota Sentencing Guidelines Commission presented Governor Tim Pawlenty with long term recommendations. 212 The recommendations created a system much like that in Kansas, where aggravating factors must be presented to a jury. 213 If the inclusion of such factors in the trial would be prejudicial to the defendant, then a bifurcated trial would be required. 214 The recommendations also allow a defendant to “choose to waive his Blakely right to jury determination of aggravating factors after a verdict of guilty and have the court make the determination.” 215 Another option for states that find Blakely applies to their sentencing scheme, is to determine what portions of their statutory sentencing schemes to invalidate. Courts should answer such a question by looking to legislative intent. 216 The Courts must determine what the 210 Blakely, 124 S.Ct. at 2548-49. Justice O‟Connor speaks of numerous other states as well as the Federal Government that have enacted similar guidelines, and will thus be affected. Id. 211 Craig M. Bradley, The Sentencing Conundrum, 40-DEC TRIAL 50, 51. 212 Minnesota Sentencing Guidelines Commission, The Impact of Blakely v. Washington on Sentencing in Minnesota: Long Term Recommendations, (September 30, 2004) (on file with author). 213 Id. at 15. Id. at 16. Id. 214 215 216 United States v. Booker, 2005 WL 50108 (U.S.) at *16 (citing Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191 (1999); Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987); Regan v. Time, Inc., 468 U.S. 641, 653 (1984) (plurality opinion)). 32 legislature would have intended in light of the Blakely holding.217 Many of the outstanding questions concerning the Federal Sentencing Scheme were answered by the Supreme Court‟s January 2005 holding in the cases of United States v. Booker and United States v. Fanfan.218 A. Federal Sentencing Guidelines Resolved The United States Supreme Court issued a landmark ruling in January of 2005 “that effectively gutted the federal sentencing guidelines by relegating them to an advisory role in meting out criminal punishment.” 219 In Booker and Fanfan, the Court was facing two questions: (1) whether the Blakely holding, requiring juries, not judges to find aggravating sentencing factors, applies to the Federal Sentencing Scheme; and (2) if the answer to the first question is “yes,” what parts, if any, of the Federal Sentencing Guidelines should be severed. 220 i. Facts of Booker and Fanfan Defendant Booker was charged with possession with intent to distribute at least 50 grams of cocaine base. 221 The jury found him guilty of violating 21 U.S.C. § 841(a)(1), which has a 217 Id. (citing Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 767 for the idea that the Court must determine if the legislature would still have passed the valid sections had it know about the constitutional invalidity of the other portions of the statute). 218 United States v. Booker, 2005 WL 50108 (U.S.). 219 John Gibeaut, All Sides Wary Of Sentencing Ruling, available at http://www.abanet.org/journal/ereport/j14sentencing.html. 220 Booker, 2005 WL 50108 at *6 n.1. 33 statutory sentencing range between 10 years and life. 222 The Federal Sentencing Guidelines require the District Court Judge to select a “base” sentence between 210 and 262 months in prison.223 In the post-trial sentencing proceeding the judge found, by a preponderance of evidence, that Booker possessed an additional 566 grams of cocaine base, and that he was guilty of obstructing justice. 224 With the additional findings, the Sentencing Guidelines required that the judge select a sentence between 360 months and life in prison. 225 The judge imposed a sentence of 360 months. 226 The case went to the Court of Appeals for the Seventh Circuit where it was held that the sentence of 360 months conflicted with the Court‟s holding in Apprendi.227 The Court held that the sentence violated the Sixth Amendment, and remanded with instructions to either sentence defendant within the range allowed by the jury‟s findings, or to hold a separate sentencing hearing before a jury. 228 221 Id. at *5. 222 Id. (citing 21 U.S.C. § 841(b)(1)(A)(iii)). 21 U.S.C. § 841(a)(1) provides in relevant part that except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. 223 Booker, 2005 WL 50108 at *5 (referencing United States Sentencing Commission, Guidelines Manual §§ 2D1.1(c)(4), 4A1.1 (Nov. 2003)). 224 Id. Id. Id. Id. Id. 225 226 227 228 34 Defendant Fanfan was convicted by a jury of conspiracy to distribute and to possess with intent to distribute at least 500 grams of cocaine. 229 According to the Federal Sentencing Guidelines the maximum sentence authorized was 78 months in prison.230 Following a sentencing hearing the trial judge found that defendant Fanfan was responsible for an additional 2.5 kilograms of cocaine power, and 261.6 grams of cocaine base. 231 According to the guidelines, the additional findings would have required a sentence of 15 or 16 years instead of the 5 or 6 years authorized by the jury verdict alone. 232 The trial court relied on the holding in Blakely and did not use the additional facts in sentencing the defendant. 233 ii. Does Blakely apply to the Federal Sentencing System? Justice Stevens delivered the opinion of the Court and was joined by Justices Scalia, Souter, Thomas, and Ginsburg, comprising the same five member majority in Blakely.234 Justice Stevens begins by stating that the Court affirms the decisions of the lower courts in both cases, as they have concluded that Blakely does apply to the Federal Sentencing Guidelines. 235 Justice Stevens‟ reasoning is very much in line with the reasoning of Blakely, holding that the 229 Id. The relevant statute is 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B)(ii). Booker, 2005 WL 50108 at *5. Id. at *6. Id. Id. Id. at *4 Id. at *5. 230 231 232 233 234 235 35 “„Constitution gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged.‟” 236 Justice Stevens continues by identifying the relevant facts/elements as “„any fact that increases the penalty for a crime beyond the prescribed statutory maximum.‟”237 Justice Stevens points out that if the Guidelines were merely advisory instead of mandatory, their use would not implicate the Sixth Amendment. 238 The Government produced three arguments in favor of not extending the reasoning of Blakely to the Federal Sentencing Guidelines. 239 The three arguments were as follows: (1) that Blakely is distinguishable because the Guidelines were promulgated by a commission rather than the Legislature; (2) that the Court is required to follow earlier decisions that are inconsistent with Blakely; and (3) that an application of Blakely to the Guidelines would conflict with the principle of separation of powers. 240 Justice Stevens disposes of the Government‟s first contention quite quickly. He makes the point that a defendant‟s Constitutional Jury Right can not be usurped by a legislature or a commission. 241 The next point the Government makes is that recent cases preclude the application of Blakely to the Federal Sentencing Guidelines. 242 Justice Stevens briefly mentions the cases that 236 Id. at *6 (quoting United States v. Gaudin, 515 U.S. 506, 511 (1995)). Id. at *7 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). Id. at *8. Id. at *11. Id. Id. at *11-12. Id. at *12. 36 237 238 239 240 241 242 the Government points to. He explains that in United States v. Dunnigan,243 the Court held that a sentence enhancement for perjury does not violate the privilege of the accused to testify own her own behalf. 244 Justice Stevens explains that Dunnigan need not be overruled because such a sentence enhancement is proper as long as the sentence does not exceed the maximum authorized by the jury. 245 In other words, if the judge had discretion based on the jury verdict to sentence between 40 and 50 months, the judge would be justified in finding that the defendant perjured herself, and thus sentence her to 50 months rather than 40 months. Next Justice Stevens discusses Witte v. United States.246 He goes on to explain that in Witte, the Court held that the Double Jeopardy Clause did not bar a prosecution for conduct that had provided the basis for an enhancement in a prior case. 247 There was never a contention that a sentencing enhancement had exceeded the sentence authorized by the jury in violation of the Sixth Amendment. 248 Justice Stevens dismisses Witte as off-point.249 Justice Stevens goes on to make the point that none of their prior cases are inconsistent with the decision in Booker.250 The final argument that the Government makes, as Justice Stevens sees it, is that applying Blakely to the Federal Sentencing Guidelines would unconstitutionally grant the Sentencing 243 United States v. Dunnigan, 507 U.S. 87 (1993). Booker, 2005 WL 50108 at *12. Id. Witte v. United States, 515 U.S. 389 (1995). Booker, 2005 WL 50108 at *12. Id. Id. Id. at *13. 37 244 245 246 247 248 249 250 Commission legislative power because the Commission‟s sentencing factors would be treated as elements.251 Justice Stevens dismisses this argument as well. 252 He explains that Congress‟ delegation to the Sentencing Commission does not exceed Congress‟ powers. 253 Justice Stevens concludes by reaffirming the holding that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” 254 iii. What, if any, parts of the Guidelines should be severed? In the second opinion issued by the court, Justice Breyer, joined by the Chief Justice Renquist and Justices O‟Connor, Kennedy, and Ginsburg, essentially whipped out the mandatory provisions of the Federal Sentencing Guidelines. 255 Justice Breyer explains that the Court must decide “whether or to what extent, „as a matter of severability analysis,‟ the Guidelines „as a whole‟ are „inapplicable . . . such that the sentencing court must exercise its discretion to sentence the defendant within the maximum and minimum set by statute for the offense of conviction.‟” 256 He starts out with his conclusion that certain provisions of the federal 251 Id. Id. at *13-15. Id. at *14. Id. at *15. Id. Id. at *16 (quoting Pet. For Cert. in No. 04-104, p. I.). 38 252 253 254 255 256 sentencing statute, that make the Guidelines mandatory, are incompatible with the Court‟s earlier constitutional holding, and must be severed. 257 He goes on to explain that after such modifications to the Federal Sentencing Act, the Federal Sentencing Guidelines are effectively advisory.258 Justice Breyer explains that the Court must determine what “„Congress would have intended‟” in light of the Court‟s constitutional holding. 259 The Court first decided that Congress would have preferred a total invalidation of the Act to an Act with the Court‟s Sixth Amendment requirement engrafted into it. 260 Then the Court decided that Congress would have preferred the excision of some of the Act, namely the Act‟s mandatory language, to the invalidation of the entire Act.261 Justice Breyer begins the analysis with explaining why the Court‟s constitutional jury trial requirement is not compatible with the Act as intended by Congress. 262 His first point is that the statute‟s text and language makes it clear that Congress did not intend for sentencing to be subject to a jury trial requirement. 263 He points out that the “statute‟s text states that „[t]he court‟ when sentencing will consider „the nature and circumstances of the offense and the history and 257 Id. Justice Breyer specifically points to 18 U.S.C.A. §§ 3553(b)(1), 3742(e) (Supp. 2004) as the provisions to be excised. Id. 258 Id. 259 Id. (quoting Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 767 (1996) (plurality opinion)). 260 Id. at *18. Id. Id. Id. 39 261 262 263 characteristics of the defendant.‟” 264 Justice Breyer explains that “the court” refers to the judge alone, not the judge in conjunction with the jury. 265 He explains that reinterpreting “the court” to mean “the judge working with the jury,” is not a feasible solution because that “would be „plainly contrary to the intent of Congress.‟” 266 The second reason the Courts jury trial requirement is incompatible with the intent of Congress, is because the basic goal of Congress was to develop a system that based punishment upon the real conduct that underlies the crime of conviction. 267 Justice Breyer argues that historically Judges have looked to real conduct, relying upon pre-sentence reports prepared by probation officers, when sentencing. 268 Justice Breyer uses the following provision to determine that Congress expected this practice to continue: “„[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the Unites States may receive and consider for the purpose of imposing an appropriate sentence.‟” 269 Even more telling is the provision in the Sentencing Guidelines that permits a “judge to reject a plea-bargained sentence if he determines, after reviewing the presentence report, that the sentence does not adequately reflect the seriousness of the defendant‟s actual conduct.”270 Justice Breyer explains that engrafting the Court‟s constitutional 264 265 Id. (quoting 18 U.S.C.A. § 3553(a)(1) (main ed. and Supp. 2004)). Id. Justice Breyer points to S. Rep. No. 98-225, p.51 (1983) for the contention that the Guidelines system “will guide the judge in making” sentencing decisions. Id. 266 Id. at *19 (quoting United States v. X-Citement Video, Inc., 513 U.S. 64, 78 (1994)). Id. Id. Id. (quoting 18 U.S.C. § 3661). 267 268 269 40 jury trial requirement would prevent a judge from relying up real conduct, other than that found by a jury, in determining sentence. 271 As shown by Justice Breyer, this would be contrary to Congress‟ intent. 272 The third reason for incompatibility, is that interpreting the current statutes in a way that satisfies the Court‟s constitutional requirements would “create a system far more complex that Congress intended.” 273 Justice Breyer points out that indictments would have to allege far too many facts.274 Would an indictment for robbery have to allege, “in addition to the elements of robbery, whether the defendant possessed a firearm, whether he brandished or discharged it, whether he threatened death, whether he caused bodily injury, whether any such injury was ordinary, serious, permanent or life threatening, whether he abducted or physically restrained anyone . . .” 275 He also explains that a jury is not capable of understanding many of the factors judges use in determining sentences.276 The fourth reason the Court‟s constitutional requirements are incompatible with the intent of Congress, is that plea bargaining would not diminish the consequences, but would make matters worse.277 Again Justice Breyer talks about the goal of Congress to link punishment with 270 Id. at *20 (citing United States Sentencing Guidelines § 6B1.2(a)). Id. Id. Id. at *21. Id. Id. 271 272 273 274 275 276 Id. Specifically Justice Breyer points to the definitions of “relevant conduct,” “loss” in a securities fraud case, and “contemptuous behavior” as matters too complex for a jury. Id. 277 Id. 41 real conduct.278 That is why, as Justice Breyer points out, Congress “authorized the Commission to promulgate policy statements that would assist sentencing judges in determining whether to reject a plea agreement after reading about the defendant‟s real conduct in a presentence report.” 279 If the Court‟s constitutional requirements were engrafted into the present Sentencing Act, it “would move the system backwards in respect both to tried and to plea-bargained cases.”280 In relation to tried cases, the judge would not be able to use post-verdict real conduct information.281 Further, the judge would be constrained by what the prosecutor actually charged.282 The same constraints would apply to plea-bargained cases, and the punishment would more likely reflect the skill of counsel, rather than the defendant‟s real conduct. 283 Justice Breyer explained that under such a system a factor that a prosecutor chose not to charge at the plea negotiation “would be placed beyond the reach of the judge entirely. Prosecutors would thus exercise a power the Sentencing Act vested in judges: the power to decide, based on relevant information about the offense and the offender, which defendants merit heavier punishment.” 284 278 Id. at *21-22. Id. at *22 (citing 28 U.S.C. § 994(a)(2)(E); USSG § 6B1.2(a)). Id. Id. Id. Id. Id. 42 279 280 281 282 283 284 The fifth and final reason Justice Breyer gives for the incompatibility, is that “Congress would not have enacted a sentencing statue[] that make[] it more difficult to adjust sentences upward than to adjust them downward.”285 Justice Breyer then turns to “the question of which portions of the sentencing statute” must be severed and excised as inconsistent with the Court‟s constitutional requirement. 286 Justice Breyer explains that the Court must “„refrain from invalidating more of the statute than necessary.‟” 287 The Court “must retain those portions of the Act that are (1) constitutionally valid, (2) capable of functioning independently, and (3) consistent with Congress‟ basic objectives in enacting the statute.” 288 Justice Breyer explains that the excision of § 3553(b)(1), namely the provision that makes the Guidelines mandatory, would alleviate any Constitutional issue. 289 Without the mandatory Guidelines, the relevant sentencing range for constitutional purposes, is that which is listed in the statute of the crime itself. 290 Justice Breyer makes the point that the remainder of the Act can function independently. 291 He goes on to modify that statement and “concede that the excision of § 3553(b)(1) requires the excision of a different, appeals-related section, namely § 3742(e), 285 Id. at *23 (citing Brief for Senator Orrin G. Hatch et al. as Amici Curiae 22 for the contention that “[s]uch a one-way lever would be grossly at odds with Congress‟s intent”). 286 Id. at * 24. Id. (quoting Regan v. Time, Inc., 468 U.S. 641, 652 (1984)). Id. internal citations omitted. Id. Id. Id. 43 287 288 289 290 291 which sets forth standards of review on appeal.” 292 This is because the two sections contain critical cross-references. 293 The Court does not see a problem in the appeals process by excising § 3742(e) because, they have previously held, a statute that does not explicitly set forth a standard of review may nonetheless do so implicitly.294 The court determines that the past two decades of appellate practice imply a standard of review for “unreasonableness” is appropriate. 295 Justice Breyer makes clear that while the Guidelines are no longer mandatory, “Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing.” 296 Those factors will also guide appellate courts in determining if a sentence is unreasonable. 297 Justice Breyer goes on to explain that “[t]he ball now lies in Congress‟ court.” 298 The Legislature is now put to the task of developing a sentencing system that is both compatible with the Constitution and that Congress judges best for the federal system of justice. 299 292 Id. Id. Id. at * 25 (citing Pierce v. Underwood, 487 U.S. 552, 558-60 (1998)). Id. Id. Id. Id. at *28. Id. 44 293 294 295 296 297 298 299 B. States Must Decide For Themsleves In his dissent in Blakely, Justice Breyer detailed various options he believed available in light of the Courts holding. 300 These options included a “pure determinate” sentencing system, reverting back to an “indeterminate” sentencing system, or maintaining a guideline system with the Court‟s constitutional requirement engrafted in. 301 The subsequent Booker case resolved the question for the Federal system, but each state now has to decide whether to excise portions of their sentencing acts, or to adopt one of Justice Breyer‟s options. Minnesota has “decided that [their] statute was constitutional, but [they] had to modify the way in which [they] did [their] aggravated departures.” 302 In some cases they implement a bifurcated trial with the second jury determining aggravating factors. 303 California has a high proportion of sentences affected by Blakely.304 The California system is a nonguidelines/determinate system in which there is a base term plus enhancements. 305 The base term can be either a high, middle, or low term. 306 The problem arises because the statute requires the judge to “impose the middle term unless he finds aggravating or mitigating factors.” 307 The 300 Blakely v. Washington 124 S.Ct. 2531, 2551-58 (2004). 301 302 Id. The Future of American Sentencing: A National Roundtable On Blakely, 17 Fed. Sent. R. 115, 2004 WL 3140897 (Vera Inst. Just.). 303 Id. Id. Id. Id. Id. 45 304 305 306 307 enhancements are not a problem because they are charged in the indictment and tried in front of a jury.308 Other states are not affected by Blakely for various reasons. Pennsylvania, for example, has sentencing guidelines that only apply to the minimum sentence. 309 The courts in Pennsylvania believe that they are unaffected by Blakely because the maximum sentence is left entirely to the judge‟s discretion. 310 How various states react to Blakely is still unfolding, but many state legislatures will be going back to the drawing board. V. CONCLUSION What started out as a case in the state of Washington, has turned out to have national impact quite quickly. Just 7 months after Blakely made it clear that sentencing factors, that are necessary for an upward departure in sentence, must be admitted by the defendant or found by jury, the Supreme Court decided in Booker that the Guidelines are no longer mandatory. The effect is that no factors are necessary for an upward departure in the Federal System. Recently, Paul McNulty, US Attorney for the Eastern District of Virginia, said “„Congress may react to Booker by passing legislation that addresses the Sixth Amendment problem and still requires mandatory adherence to the guidelines.‟ Whether or not Congress will react „will probably be 308 309 310 Id. Id. Id. 46 the result of how judges begin to act with this new flexibility.‟” 311 He went on to say that in the 20 to 25 sentences that have been handed down since Booker, judges have stayed within the Guidelines.312 Interestingly, Justice Ginsburg found herself as the only member of both 5-4 majority opinions in Booker. Even more mysterious is that she “wrote no opinion explaining her changing position.” 313 When looked at carefully, I am not sure that she did change positions. The first opinion is simply a reaffirmation of Blakely. In Blakely, the majority makes a clear argument that the Constitution protects a defendant from the government by providing him a jury trial right. If the legislature requires certain findings for a particular punishment, then a jury must find those facts. The second opinion in Booker deals only with Congress‟ intent in enacting the Sentence Reform Act. I find the solution of the majority to be a sensible one, and I am surprised that the decision was so close. Another interesting point is that in his dissent, Justice Breyer detailed several options for the future of sentencing in lieu of Blakely. He did not however speak of the option which he wound up implementing in Booker. That is, to relegate the Guidelines to a highly advisory role. We must now wait and see the response of State Legislatures and Congress. I predict Congress will not be so quick to act, as the solution the court implemented seems to encompass the original intent of Congress. 311 Sentencing And Law Policy, Thinking About What DOJ Is Thinking About, available at http://sentencing.typepad.com/sentencing_law_and_policy/booker_and_fanfan_commentary/ (Jan 2005). 312 Id. 313 All Sides Wary Of Sentencing Ruling, available at http://www.abanet.org/journal/ereport/j14sentence.html. 47