Benno Law Review Note Revised

Benno Ashrafi 2/25/05 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 How To Proceed For Themsleves V. CONCLUSION I. INTRODUCTION How important is the Sixth Amendment right to a trial by jury? In June of 2004 the Supreme Court issued a ruling that implied such right had been systematically sidestepped in thousands of cases. 1 When the Supreme Court issued a ruling in Blakely v. Washington,2 they specifically addressed the issue in the state of Washington. What about the rest of America? This note will discuss how 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.”3 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.” 4 The confusion lies in the distinction between 1 In Blakely v. Washington, 124 S.Ct. 2531 (2004), the Supreme Court held that judicial factfinding necessary to increase a defendant‟s sentence is a practice that violates the defendant‟s constitutional right to jury trial. Such a practice has been the norm in Federal system and many State systems for the past 20 years. See Douglas A. Berman, The Roots And Realities of Blakely, 19 WTR CRIM. J UST. 5, 7-9 (2005); Douglas A. Berman, Conceptualizing Blakely, 17 Fed. Sent. R. 89, 2004 WL 3140893 (Vera Inst. Just.). 2 Blakely v. Washington, 124 S.Ct. 2531 (2004). U.S. CONST. amend. XI. 3 4 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 2 elements of the crime and sentencing factors. 5 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.6 Part III will discuss the facts of the Blakely case,7 while part IV will discuss the Courts analysis and reasoning associated with the holding in Blakely.8 Part V will take look at the impact the Blakely case will have on sentencing in the future.9 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). 5 Congress or State legislatures label some facts “elements of an offense.” These facts are necessary in proving the guilt or innocence of a defendant. Other facts are called “sentencing factors.” These facts do not affect guilt or innocence, instead they affect the severity of the sentence. 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 L AW & CONTEMP. PROBS. 249 (Autumn 1998). Some common sentencing factors are drug quantity, type of victim, presence of violence, degree of injury, use of gun, and so on. See Blakely, 124 S.Ct. at 2554-55. 6 See infra notes 10-44 and accompanying text. See infra notes 45-65 and accompanying text. See infra notes 66-230 and accompanying text. See infra notes 231-94 and accompanying text. 7 8 9 3 II. BACKGROUND The importance of Blakely stems from the broad impact it will have. It changes “the seemingly settled procedures required at sentencing” and will impact almost every case, state and federal, in the criminal justice system. 10 Through the nineteenth century and most of the twentieth century, both state and federal justice systems used a “highly discretionary, rehabilitative” approach to sentencing. 11 Trial judges had discretion in setting an appropriate sentence as they saw fit, within the statutory limits for each offense. 12 The statutory limits for each offense tend to be quite broad, from ten years to life in some cases. 13 In establishing a sentence, the judge was permitted to consider information from a number of out-of-court sources not governed by procedural or evidentiary limitations. 14 10 Douglas A. Berman, The Roots And Realities of Blakely, 19 WTR C RIM. J UST. 5, 5 (2005). In Blakely the Court specifically held one part of Washington State‟s guidelines system as unconstitutional. However, the holding suggests that judges are not constitutionally permitted to find facts that increase the defendant‟s sentence, “even though nearly all modern sentencing reforms [state and federal,] have made judges central and essential sentencing fact finders.” Id. at 6. 11 Id. at 6-7 12 Douglas A. Berman, The Roots And Realities of Blakely, 19 WTR CRIM. J UST. 5, 7 (2005); Mark D. Harris, ed., Blakely’s Unfinished Business, 17 Fed. Sent. R. 83, 2004 WL 3140892, *4 (Vera Inst. Just.). 13 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). 14 Mark D. Harris, ed., Blakely’s Unfinished Business, 17 Fed. Sent. R. 83, 2004 WL 3140892, *4 (Vera Inst. Just.). The judge traditionally looks to a pre-sentence report that contains information about the defendant, including the defendant‟s personal history that has been gathered though various interviews of family and friends. Id. 4 In 1949, the Supreme Court affirmed this procedural approach to sentencing in Williams v. New York. 15 The judge in Williams sentenced the defendant to death based upon his review of a pre-sentence report. 16 The Supreme Court rejected the defendant‟s claim of right to confront and cross examine witnesses against him, and stated that the constitution does not require “that courts throughout the Nation abandon their age-old practice of seeking information from out-ofcourt sources to guide their judgment toward a more enlightened and just sentence.” 17 Such indeterminate sentencing systems were being criticized by researchers and scholars concerned with unjust disparities in sentences that were being produced. 18 As a result of such criticism, state legislatures began passing determinate sentencing statues in the late 1970s and early 1980s, which created presumptive sentencing ranges for various classes of offenses. 19 The federal government followed the reform movement with the passage of the Sentencing Reform Act of 1984, which directed a Sentencing Commission to promulgate narrow sentencing 15 Williams v. New York, 337 U.S. 241 (1949). 16 Id. at 242-43. The judge looked to the pre-sentence report and referred to the experience the defendant had on thirty other burglaries in the same vicinity. Id. at 244. The judge also referred to certain activities in the report that indicated the defendant had a morbid sexuality and was a menace to society. Id. 17 18 Id. at 250-51. Douglas A. Berman, The Roots And Realities of Blakely, 19 WTR C RIM. J UST. 5, 7 (2005); see also The Truth About Mandatory Sentencing Guidelines, available at http://www.pixi.com/~itmc/Sentencing.html. In a system where a judge has discretion to sentence as he sees fit, it is easy to imagine large disparities in sentences of similarly situated defendants. Justice O‟Connor has described the system as producing severe disparities, often linked to racial bias. Blakely v. Washington, 124 S.Ct. 2531, 2544 (2004). 19 Douglas A. Berman, The Roots And Realities of Blakely, 19 WTR C RIM. J UST. 5, 7 (2005). In 1978, Minnesota became the first state to develop comprehensive sentencing guidelines. Id. Pennsylvania and Washington State created their own sentencing guidelines in 1982 and 1983 respectively. Id. 5 guidelines for every federal offense. 20 Over the past 30 years, the highly discretionary, indeterminate sentencing system that was in place for over a century has been replaced by more structured, determinate sentencing schemes. 21 While legislatures have been committing time and energy to the development of guidelines that govern substantive sentencing decisions, they have largely ignored the process though which judges obtain and assess the information that serves as the basis for the sentencing decisions.22 This lack of attention was in large part due to the Supreme Court decision in 1986 in McMillan v. Pennsylvania.23 In McMillan, the defendant challenged a Pennsylvania statute that provided a mandatory minimum 5-year sentence if the judge found, by a preponderance of evidence, that a person visibly possessed a firearm during the commission of an offense. 24 The defendant‟s principal argument was that visible possession of a firearm should be treated as an element of the offense, and thus must be proved beyond a reasonable doubt to a jury. 25 The Court rejected that argument and stressed that courts must have the ability to define crimes and 20 18 U.S.C.A. § 3553; see also Douglas A. Berman, The Roots And Realities of Blakely, 19 WTR CRIM. J UST. 5, 7 (2005); The Truth About Mandatory Sentencing Guidelines, available at http://www.pixi.com/~itmc/Sentencing.html. The Sentencing Commission consists of seven voting members who are appointed by the President and confirmed by the Senate. No more than three of the commissioners may be federal judges and no more than four may belong to the same political party. United States Sentencing Commission, An Introduction To The United States Sentencing Commission, available at http://www.ussc.gov/general/INTRUSSC.HTM. 21 22 Douglas A. Berman, The Roots And Realities of Blakely, 19 WTR C RIM. J UST. 5, 7 (2005). Id. McMillan v. Pennsylvania, 477 U.S. 79 (1986). Id. The statute in question is P A. CONST. STAT. § 9712 (1982). McMillan, 477 U.S. at 83. 23 24 25 6 prescribe penalties. 26 The Court went on to explain that Pennsylvania may properly treat visible possession of a firearm as a “sentencing consideration” and not an element of any offense. 27 The Court concludes with a powerful statement: “we need only note that there is no Sixth Amendment right to jury sentencing, even where the sentence turns on specific findings of fact.” 28 The McMillan Court essentially gave a constitutional pass to the sentencing process. 29 The distinction between elements and sentencing factors, as it relates to the sentencing process, again came before the Supreme Court in 1998 in Almendarez-Torres v. United States.30 In Almendarez, the defendant was convicted of illegally reentering the United States after having been previously deported. 31 The Court held that evidence of the defendant‟s prior convictions could be used to increase his sentence without being subject to the procedural rules for elements of crimes at trial. 32 26 Id. at 93. Id. Id. Douglas A. Berman, The Roots And Realities of Blakely, 19 WTR C RIM. J UST. 5, 8 (2005). Almendarez-Torres v. United States, 523 U.S. 224 (1998). Id. at 227. 27 28 29 30 31 32 Id. at 247-48. The relevant statute allows a maximum sentence of 2 years for an alien convicted of returning to the United States after being deported. Id. at 226 (citing 8 U.S.C. § 1326). The same statute authorizes a prison term of up to 20 years if the initial deportation was subsequent to an aggravated felony. Id. (citing 8 U.S.C. § 1326). The Court determined that the latter provision did not constitute a separate crime, it simply authorized an enhanced penalty. Id. Therefore, the government did not need to write an indictment that mentions the additional element, namely, a prior aggravated felony conviction. Id. 7 In the 1999 case of Jones v. United States,33 the Supreme Court issued a ruling that began a “change of the tide” in terms of constitutional review of sentencing procedures. In Jones, the defendant was convicted of carjacking. 34 The relevant statute provided for a maximum sentence of 15 years for carjacking but increased that maximum to 25 years if serious bodily injury results.35 The district court judge determined, by a preponderance evidence, that serious bodily injury did result. 36 Accordingly, the judge sentenced the defendant to 25 years in prison. 37 The Court of Appeals affirmed the judge‟s sentence and agreed that the “serious bodily injury” provision was a sentencing factor that could be found by the judge, not an element that was required, by the Constitution, to be charged in the indictment and found by a jury. 38 The Supreme Court reversed the sentence, finding the “serious bodily injury” provision an element 33 Jones v. United States, 526 U.S. 227 (1999). Id. at 229. 18 U.S.C. § 2119 states: Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall – (1) be fined under this title or imprisoned not more than 15 years, or both, (2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title or imprisoned mot more than 25 years, or both, and (3) if death results, be fined under this title or imprisoned for any number of years up to life, or both. Jones, 526 U.S. at 229 (citing 18 U.S.C. § 2119). 34 35 36 Id. at 231. The judge looked to a pre-sentence report that noted the carjacking victim was struck on the head with a gun. Id. The blow caused profuse bleeding in the victim‟s ear and resulted in permanent hearing loss. Id. 37 Id. 38 Id. The Court of Appeals looked to the statute and reasoned that the “serious bodily injury” provision could not stand alone. Id. Because it was dependent on the first paragraph of the statute, it was determined to be a sentencing factor, not an element. Id. 8 that must be charged in the indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict. 39 In 2000, the Supreme Court in Apprendi v. New Jersey40 converted the Jones Court‟s dicta into a ruling.41 The Apprendi Court declared unconstitutional a hate crime enhancement that authorized a judge to impose a greater sentence than otherwise available “based on a finding of racial animus by a preponderance of the evidence.” 42 The Court set forth the rule that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the 39 Id. at 252. The Court looked to similar statues to determine if the “serious bodily injury” provision constituted an element or a sentencing factor. Id. at 228. The Court specifically found that Congress had identified “serious bodily injury” as an offense element in several other federal statues including two of the three robbery statutes on which it modeled the carjacking statute. Id. The Court found “the fairest reading” of the statute to treat the fact of serious bodily harm as an element. Id. at 239. The Court acknowledged the possibility of interpreting the provision as a sentencing factor and went on to apply the rule that when there is doubt as to the interpretation of a statute, it should be interpreted in a fashion that raises the least constitutional concerns. Id. at 236 (citing United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909)). The Court explains that interpreting the provision as an element, requiring it to be charged in the indictment and proved to jury, would put to rest constitutional concerns. See id. at 236-51. 40 Apprendi v. New Jersey, 530 U.S. 466 (2000). Douglas A. Berman, The Roots And Realities of Blakely, 19 WTR C RIM. J UST. 5, 9 (2005). 41 42 Id. In Apprendi, the defendant plead guilty to two counts of second-degree of possession of a firearm for an unlawful purpose, N.J. STAT . ANN. § 2C:39-4a (West 1995), and one count of the third degree offense of unlawful possession of an antipersonnel bomb, § 2C:39-3a. Apprendi, 530 U.S. at 469-70. Under state law, a second-degree offense carries a penalty range of 5 to 10 years. Id. A separate statute, described as a “hate crime” law, allows for an greater sentence if the judge finds, by a preponderance of evidence, that “[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.” Id. at 468-69 (citing N.J. STAT. ANN. § 2C:44-3(e) (West Supp. 1999-2000)). The judge found that the “hate crime” enhancement applied and sentenced the defendant appropriately. Id. at 471. 9 prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 43 With the Apprendi rule established, Blakely v. Washington 44 came to the forefront. III. FACTS Ralph Howard Blakely, Jr. married his wife Yolanda in 1973. 45 After he was diagnosed with psychological and personality disorders, his wife ultimately filed for divorce. 46 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. 47 During the kidnaping, he implored her to dismiss the divorce suit and related proceedings. 48 Blakely drove his wife to a friend‟s house in Montana where he was arrested after the friend called the police. 49 The State charged Blakely with first-degree kidnapping. However, upon reaching a plea agreement, it reduced the charge to second-degree kidnaping involving domestic violence and 43 Apprendi, 530 U.S. at 489. Blakely v. Washington, 124 S.Ct. 2531, (2004). Id. at 2534. Id. Id. Id. Id. 44 45 46 47 48 49 10 use of a firearm. 50 Blakely entered a guilty plea admitting the elements of second-degree kidnapping and the domestic-violence and firearm allegations, but no other facts. 51 The sentencing phase followed.52 In Washington, second-degree kidnaping is a class B felony for which state law provides that the maximum term of confinement is ten years. 53 Other provisions of state law, however, further limit the range of sentences a judge may impose. 54 “Washington‟s Sentencing Reform Act specifies, for [Blakely‟s] offense of second-degree kidnapping with a firearm, a „standard range‟ of 49 to 53 months.” 55 A judge must find substantial and compelling reasons to impose a sentence above the standard range. 56 In addition, to impose a sentence above the standard range, the judge must set forth findings of fact and conclusions of law supporting it. 57 50 Id. (citing WASH . REV . CODE ANN. §§ 9A.40.020(1), 9A.40.030(1), 10.99.020(3)(p), 9.94A.125). 51 Id. at 2534-35. Id. at 2535. Id. (citing WASH . REV . CODE ANN. §§ 9A.40.030(3), 9A.20.021(1)(b)). Id. Id. (citing WASH . REV . CODE ANN. §§ 9.94A.320, 9.94A.360, 9.94A.310(1), 9.94A.310(3)(b)). 52 53 54 55 56 Id. (citing WASH . REV . CODE ANN § 9.94A.120(2)). The statute lists aggravating factors that justify a greater sentence. WASH . REV . CODE ANN § 9.94A.120(2). The list is illustrative, not exhaustive, and includes such factors as: the current offense was violent, and the defendant knew the victim was pregnant; the current offense involved multiple victims; the current offense involved a high degree of planning over time; etc. Id. 57 Id. (citing WASH . REV . CODE ANN § 9.94A.120(3)). 11 In line with the plea agreement, the State recommended a sentence within the standard range of 49 to 53 months. 58 The judge, however, rejected the State‟s recommendation and imposed an exceptional sentence of 90 months. 59 The judge “justified the sentence on the ground that petitioner had acted with „deliberate cruelty,‟ a statutorily enumerated ground for departure.” 60 Blakely objected to the exceptional sentence and the judge conducted a 3-day bench hearing.61 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. 62 The judge maintained the exceptional sentence on the basis of deliberate cruelty. 63 58 Id. Id. 59 60 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. Therefore, the Supreme Court will focus only on that factor. Id. 61 Id. Id. at 2535-36 Id. at 2536. 62 63 12 Blakely appealed and the Washington State Court of Appeals affirmed the sentence. 64 The Washington Supreme Court denied review and the United States Supreme Court granted certiorari.65 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.66 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.” 67 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 64 Id. The Court of Appeals reviewed the sentence under an abuse of discretion standard. State v. Blakely, 47 P.3d 149, 159 (Wash. Ct. App. 2002). The Court of Appeals determined that the constitutional concerns of Apprendi did not apply because “the statutory and nonstatutory aggravating factors neither increase the maximum sentence nor define separate offenses calling for separate penalties.” Id. The Court found the relevant stautory maximum, for Apprendi purposes, to be the ten year maximum for all class B felonies. See id. 65 Id. Id. at 2534. Id. (citing Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). 66 67 13 neighbours,‟ 68 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.‟” 69 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. 70 He went on to describe that, in Ring v. Arizona,71 the Court applied Apprendi to an Arizona law that allowed the judge to impose the death penalty if he found certain aggravating factors. 72 In both cases, the Supreme Court concluded that the sentences violated the defendant‟s constitutional rights because “the 68 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. 69 70 71 Ring v. Arizona, 536 U.S. 584 (2002). In Ring, the defendant was convicted of felony murder after the jury heard evidence that proved he robbed an armored truck and shot and killed the driver during the robbery. Id. at 589-93. Under Arizona law, the defendant could not be sentenced to death unless further findings were made. Id. at 592. The trial judge is to conduct a hearing before the court alone, and determine the presence of any aggravating circumstances. Id. The State‟s law authorizes the judge to sentence the defendant to death only if there is at least one aggravating circumstance. Id. at 593. Some of the enumerated aggravating factors included: (1) the defendant has been convicted of another offense in the United States for which under Arizona law a sentence of life imprisonment or death was imposable; (2) the defendant committed the offense in an especially heinous, cruel, or depraved manner; etc. A RIZ. REV . STAT. ANN. § 13-703(F). The trial judge found two aggravating factors. Ring, 536 U.S. at 595. He determined the defendant committed the offense in expectation of receiving something of pecuniary value, and he found the offense was committed in an especially heinous manner. Id. As a result, the judge sentenced the defendant to death. Id. The Supreme Court reversed the sentence relying on Apprendi. Id. at 588-89. Justice Ginsburg delivered the opinion stating that the Sixth Amendment does not permit a defendant to be exposed to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone. Id. Here, the death penalty could only be imposed with additional findings from the judge. Id. at 592. Therefore, the jury verdict alone did not permit such a sentence. See id. 72 Blakely, 124 S.Ct. at 2537. 14 judge had imposed a sentence greater than the maximum he could have imposed under state law without the challenged factual finding.” 73 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. 74 Without such a finding by the judge, the sentence imposed could be no greater than the 53-month statutory maximum. 75 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 for class B felonies in § 9A.20.021(1)(b).” 76 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.”77 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 73 Id. Id. Id. 74 75 76 Id. The State contends that the case is distinguishable from Apprendi because, in Apprendi, the statute for the convicted offense allowed a maximum punishment of 10 years. Apprendi, 530 U.S. at 468. The trial judge referred to a separate “hate crime” statute which allowed him to increase the penalty beyond the maximum 10 years. Id. at 468-69. In the case of Defendant Blakely, the statute for the convicted crime allows a maximum penalty of 10 years. Blakely, 124 S.Ct. at 2535. The State contends that the judge is authorized, by the statute, to impose a sentence of up to 10 years without raising Apprendi concerns. Id. at 2537. In this case, according to the state, the 90-month sentence imposed, is within the 10-year statutory maximum allowed. See id. 77 Id. 15 the maximum he may impose without additional findings.” 78 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. 79 Next, Justice Scalia addresses the State‟s argument that the sentence should be upheld as it is analogous to McMillan v. Pennsylvania80 and Williams v. New York.81 He distinguished and dismissed each case. First he points out that the McMillan case dealt with mandatory minimums and the Williams case involved an indeterminate-sentencing scheme.82 Neither case was on point 78 Id. In this case, while the statute does authorize a maximum punishment of 10 years (if the judge finds additional aggravating facts), the punishment can only exceed 53 months if the judge finds “substantial and compelling” reasons to impose a sentence above the standard range. See WASH . REV . CODE ANN. §§ 9.94A.320, 9.94A.360, 9.94A.310(1), 9.94A.310(3)(b). Therefore, the jury verdict alone does not authorize the 90 month sentence. See Blakely, 124 S.Ct. at 2537. 79 Id. Justice Scalia looks to prior cases that analyze the constitutional authority of judges to sentence defendants. See id. In Jones v. United States, 526 U.S. 227, 243 (1999) the Court noted that “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than a prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” 80 McMillan v. Pennsylvania, 477 U.S. 79 (1986). The defendants in McMillan had been convicted of various felonies enumerated in Pennsylvania‟s Mandatory Minimum Sentencing Act, 42 PA. CONST. STAT . § 9712 (1982). McMillan, 477 U.S. at 80. The act provides that anyone convicted of certain enumerated felonies is subject to a mandatory minimum sentence of five years if the judge finds, by a preponderance of evidence, that the person visibly possessed a firearm during the commission of the offense. § 9712(b). The defendants challenged the constitutionality of the act and failed. See McMillan, 477 U.S. 79. 81 Williams v. New York, 337 U.S. 241 (1949). The defendant in Williams was convicted of first degree murder in the State of New York. Id. at 242. New York applied an indeterminate sentencing scheme at that time, which allowed the judge to impose a maximum sentence of death. Id. at 243. The judge reviewed a pre-sentence investigation report, and based on some of the details of the report he imposed a sentence of death. Id. at 244. The defendant challenged the constitutionality of the judge reading a pre-sentence report and failed. See id. 82 Blakely, 124 S.Ct. 2538. 16 because they did not deal with a sentence greater than what was authorized on the basis of the jury verdict alone. 83 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. 84 Justice Scalia dismisses this argument as unpersuasive. 85 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.” 86 Justice Scalia then declares the defendant‟s sentence invalid because it does not comply with the Constitution.87 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.” 88 He explains that the voting process ensures the people‟s ultimate control in the legislative and executive branches, 83 Id. 84 Id. In Apprendi and Ring, the relevant statutes contained an exhaustive list of aggravating factors, one of which must be found to impose a sentence greater than the statutory maximum. See N.J. STAT . ANN . § 2C:44-3(e) (West Supp. 1999-2000); ARIZ. REV . STAT. ANN. § 13-703(F). In Blakely, the list, found in the statute, of “substantial and compelling” reasons to impose a sentence greater than the standard range is illustrative, not exhaustive. See WASH . REV . CODE ANN § 9.94A.120(2). 85 Id. 86 Id. Justice Scalia points out that in all of the cases, Apprendi, Ring, and Blakely, the judge must find an aggravating fact to impose the particular sentence. Id. Because the judge must find an aggravating fact, the jury verdict alone (without the judge‟s finding) does not authorize the sentence. See id. 87 Id. Id. 88 17 and the jury system does the same in the judicial branch. 89 He goes on to say that the Framers intended the judge‟s authority to sentence be derived wholly from the jury‟s verdict. 90 Justice Scalia explains that those who reject the holding are resigned to one of two alternatives.91 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. 92 He provides the example that a man convicted by a jury for illegally possessing a firearm, or making an illegal lane change while fleeing the scene, could be sentenced for committing murder under this scheme.93 89 Id. at 2539 90 Id. Justice Scalia looks to various letters written by John Adams and Thomas Jefferson to determine that the Framers intended the people have ultimate control in the judiciary. Id. (citing John Adams, Diary Entry (Feb. 12, 1771), reprinted in 2 Works of John Adams 252, 253 (C. Adams ed. 1850) (“[T]he common people, should have as complete a control . . . in every judgment of a court of judicature” as in the legislature); Letter from Thomas Jefferson to the Abbe Arnoux (July 19, 1789), reprinted in 15 Papers of Thomas Jefferson 282, 283 (J. boyd ed. 1958) (“Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative”)). Justice Scalia makes the jump to state the Framers‟ design is best carried out by ensuring that the judge‟s authority to sentence be derived wholly from the jury‟s verdict. Blakely, 124 S.Ct. at 2539. 91 92 Blakely, 124 S.Ct. at 2539. Id. 93 Id. Under such an approach, the legislature determines the elements of a particular crime, and only those elements are governed by the jury trial right. The legislature will also label certain facts as “sentencing factors” that the judge alone can assess and use in determining a sentence. In the example Justice Scalia provided, an individual may be convicted by a jury of illegally possessing a firearm. In the sentencing phase, the judge can then determine if the use of that firearm caused death, if the defendant acted intentionally, etc. These sentencing factors, found by a judge, can then authorize a sentence of life imprisonment for example. 18 The second alternative is one where the legislature establishes legally essential sentencing factors within limits.94 The limits would be crossed when “the sentencing factor is a „tail which wags the dog of the substantive offense.‟” 95 The judiciary would ultimately determine if the legislature has crossed the limits and gone too far.96 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. 97 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.” 98 94 Id. Using this approach the legislature would still be able to label certain facts elements and others sentencing factors. The difference is that they would not be able to label any fact as they desired. The facts labeled as elements should amount to the bulk of the defendant‟s sentence, and sentencing factors could only “enhance the sentence.” A situation where a defendant is convicted of an illegal lane change, or illegal possession of a firearm could not result in life imprisonment because the sentencing factors would be overwhelming the offense elements. 95 Id. (quoting McMillan v. Pennsylvania, 477 U.S. 79, 88 (1986)). The sentencing factor becomes a tail which wags the dog of the substantive offense when the sentencing factor accounts for the majority of the defendant‟s sentence. See id. The law must “not exceed the judicial estimation of the proper role of the judge.” Id. 96 97 Id. 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). 98 Id. 19 Justice Scalia goes on to discuss the various dissents, which I will reference later, 99 and concludes that the judgment of the Washington Court of Appeals is reversed, and the case is remanded.100 B. Justice O’Connor’s Dissent The first dissent is written by Justice O‟Connor and she is joined by Justice Breyer. 101 The Chief Justice Renquist and Justice Kennedy join in part. 102 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.” 103 She goes on to state that the effect of the holding will be “greater judicial discretion and less uniformity in sentencing.” 104 She follows with the point that she does not believe the Framers would consider such a result required by the Constitution.105 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 99 See infra notes 143-60, 221-30 and accompanying text. Blakely 124 S.Ct.. at 2543. Id. Id. Id. Id. Id. at 2543-44. 100 101 102 103 104 105 20 most other States and the Federal system. 106 There were three classes of felonies each with a broad range of authorized sentences. 107 She goes on to state that judges had broad discretion to sentence defendants to prison terms falling anywhere between the statutory range, including probation.108 Justice O‟Connor describes this system as producing severe disparities, often linked to racial bias, in sentences of defendants that had committed similar offenses. 109 To remedy the apparent inconsistency in sentences, Washington passed the Sentencing Reform Act of 1981. 110 106 Id. at 2544. 107 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)). 108 Id. Prior to the the Sentencing Refor Act of 1981, judges in the state of Washington were authorized to choose between prison and probation, subject only to review for abuse of discretion. Boerner & Lieb, Sentencing Reform in the Other Washington, 28 CRIME & J UST. 71, 73 (2001). 109 Blakely, 124 S.Ct. at 2544. Studies showed that the indeterminate sentencing scheme that Washington State and the federal governement used produced unjust disparities in sentencing. Steven Breyer, The Federal Sentencing Guidelines and Key Compromises Upon Which They Rest, 17 HOFSTRA L. REV. 1, 5 (1998). Female bank robbers are likely to serve six months less than their similarly situated male counter-parts. Id. Black bank robbery defendants convicted in the South are likely to actually serve approximately thirteen months longer than similarly situated bank robbers convicted in other regions. Id. 110 1981, Wash. Laws, ch. 137, p.534. 21 The act did not alter the three classes of felonies, 111 it merely placed constraints on the judges discretion to sentence defendants. 112 Justice O‟Connor explains 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. 113 She points out that prior to the Act, a defendant in Blakely‟s position, charged with second degree kidnapping, could receive a sentence ranging from probation to 10 years in prison. 114 The broad range allowed the sentencing judge to make any determination of sentence using any factors he wished. 115 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. 116 Justice 111 Blakely, 124 S.Ct. at 2544. 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). 112 Id. Id. at 2445. Id. 113 114 115 Id. Under the indeterminate scheme that existed prior to 1981, judges in the state of Washington were authorized to choose between prison and probation, subject only to review for abuse of discretion. Boerner & Lieb, Sentencing Reform in the Other Washington, 28 CRIME & J UST. 71, 73 (2001). 116 Blakely, 124 S.Ct. at 2545. “By consulting one sheet, practitioners could identify the applicable scoring rules for criminal history, the sentencing range, and the available sentencing options for each case.” Id. (citing Boerner & Lieb, Sentencing Reform in the Other Washington, 28 CRIME & J UST . 71, 93 (2001)). 22 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. 117 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.” 118 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.” 119 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. 120 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. 121 Justice O‟Connor goes talks about other complications that will result from the majority‟s holding. She mentions that some facts generally considered for sentencing purposes will not be 117 Id. 118 Id. at 2546. It is debatable whether the majority requires that each fact increasing the upper bound on a judge‟s sentencing discretion be called an element. However, the majority makes clear that such facts must be submitted to a jury and proved beyond a reasonable doubt. Id. at 2534. 119 Id. The majority requires such facts be submitted to a jury only if the legislature requires a finding of such fact necessary to increase the judge‟s sentencing power. See id. at 2534-43. 120 Id. (citing Fed. Rule Evid. 404). Id. 121 23 discovered prior to trial, which makes it impossible to charge these facts in the indictment. 122 She specifically mentions obstruction of justice as such a fact. 123 Under the majority‟s approach, 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. 124 She talks about other facts that arise during the prosecution of a drug distribution defendant. 125 For example, the facts may reveal that the defendant sold primarily to children.126 If the legislature wishes to increase the 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. 127 The latter choice will likely be unavailable because a separate prosecution can be barred by the double jeopardy clause. 128 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. 129 122 Id. Id. 123 124 Id. If finding obstruction is necessary to increase the judge‟s sentencing power, the majority approach does not allow a judge to make the determination on his own. The facts relating to obstruction must be charged in an indictment and found by a jury. 125 Id. Id. Id. 126 127 128 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). 129 Id. at 2547. 24 Justice O‟Connor continues by stating that the Reform Act of 1981 did not increase the statutory maximum sentence that the defendant faced. 130 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. 131 Justice O‟Connor accuses the majority of basing their decision on “doctrinaire formalism” rather than proper principles. 132 She goes on to state that a rule of deferring to legislative labels (elements versus sentencing factors) would be just as formal and would be more consistent with previous Supreme Court holdings. 133 Justice O‟Connor goes on to address the majority argument that adherence to such an approach could produce absurd results. 134 She states that a “built-in political check” will prevent 130 Id. Id. 131 132 Id. It is unclear exactly what Justice O‟Connor means by accusing the majority of being motivated by “doctrinaire formalism.” A literal reading suggests that the majority is rigidly applying the “letter of the Constitution” rather than taking an approach that would work from a practical standpoint. See Dictionary.com at http://dictionary.reference.com. 133 Blakely, 124 S.Ct. 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. 134 Id. See supra note 93 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). 25 lawmakers from altering elements and sentencing factors such that the real prosecution of crimes will be shifted to the penalty phase. 135 She claims that adherence to the majority approach will produce results “that disserve the very principles the majority purports to vindicate.” 136 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. 137 She states that the majority‟s holding “casts constitutional doubt over them all.” 138 Trial courts will proceed in wake of many unanswered questions: “Do courts apply the guidelines as to mitigating factors, but not as to aggravating factors?” 139 “Do they jettison the guidelines altogether?” 140 Justice O‟Connor makes the final point that the Federal Guidelines are not likely to be distinguished from the Washington State Guidelines. 141 She ends her dissent with a dramatic 135 Id. 136 Id. Justice O‟Connor is referring to her belief that legislatures will revert back to indeterminate sentencing in the wake of the majority‟s decision. Id. at 2547. Indeterminate sentencing schemes provided less protection to defendants because the judge had such unfettered discretion. Douglas A. Berman, The Roots And Realities of Blakely, 19 WTR CRIM. J UST. 5, 7 (2005); Mark D. Harris, ed., Blakely’s Unfinished Business, 17 Fed. Sent. R. 83, 2004 WL 3140892, *4 (Vera Inst. Just.). 137 Blakely, 124 S.Ct. at 2548-49. (citing 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 (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.). 138 Id. at 2549. Id. Id. Id. at 2549-50. 26 139 140 141 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.” 142 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.” 143 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.” 144 Justice Scalia also addressed the issue of obstruction-of-justice that Justice O‟Connor brings up.145 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.” 146 142 Id. at 2550. Blakely, 124 S.Ct. at 2539 (referencing Blakely, 124 S.Ct. at 2545-47). Id. at 2539 n. 10. Id. at 2540 (referencing Blakely, 124. S.Ct. at 2546). Blakely, 124 S.Ct at 2340 n. 11 (internal citation omitted). 143 144 145 146 27 Justice Scalia devotes most of his attention focused on Justice O‟Connor‟s dissent to her comments about increased judicial discretion. 147 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 constitutionality of the latter implies the constitutionality of the former.” 148 Justice O‟Connor does not make this argument outright but she does dance around it. 149 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. 150 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.” 151 The most important factor to be considered is the defendants legal right to a lesser sentence. 152 Justice Scalia gives 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. 153 In such a 147 Blakely, 124 S.Ct. at 2543-48. See infra notes 103-04 and accompanying text. Blakely, 124 S.Ct. at 2540. 148 149 Justice O‟Connor doesn‟t make the statement outright but much of her dissent is devoted to explaining that a defendant is afforded more protections under the current determinate sentencing scheme than under an indeterminate scheme. See id. at 2543-48. Further, if constitutional protection of a defendant is what is at stake, then the constitutionality of indeterminate schemes implies the constitutionality of determinate ones. See id. 150 Id. Id. Id. Id. 151 152 153 28 system, “every burglar knows he is risking 40 years in jail.” 154 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.155 In such a system, an unarmed burglar is legally entitled to no more than a 10-year sentence.156 The Constitution demands that only a jury shall take away that legal entitlement. 157 Further, Justice Scalia disagrees with Justice O‟Connor‟s belief that the net effect of the holding will be an increase in judicial power. 158 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.159 He points to the State of Kansas as an example.160 154 Id. Id. Id. Id. See infra note 103-04 and accompanying text. Blakely, 124 S.Ct. 2542. 155 156 157 158 159 160 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.)). 29 D. Justice Kennedy’s Dissent The second dissent is written by Justice Kennedy and joined by Justice Breyer. 161 Justice Kennedy writes a brief dissent that starts by echoing Justice O‟Connor‟s dissent.162 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.‟” 163 He goes on to explain that sentencing guidelines are a prime example of this collaborative process. 164 Judges and Legislators have spent years developing sentencing systems that are designed to rectify the problems of indeterminate sentencing schemes.165 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. 166 161 Id. at 2550. Id. 162 163 Id. (quoting Mistretta v. United States, 488 U.S. 361, 408 (1989)). The Constitution anticipates reciprocity among the Branches. Mistretta, 488 U.S. at 408. As part of that that reciprocity and to ensure the integration of dispersed powers into a workable government, Congress may request the assistance of judges in the creation of rules governing the Judicial Branch. Id. “Our principle of separation of powers anticipates that the coordinate Branches will converse with each other on matter of vital common interest.” Id. 164 Blakely, 124 S.Ct. at 2551. Id. 165 166 Id. For the reasons why the Constitution does not require the majority decision, Justice Kennedy simply refers to Justice O‟Connor‟s dissent. Id. He believes over 20 years of sentencing reform will be lost because sentencing will revert back to indeterminate schemes. 30 E. Justice Breyer’s Dissent The third dissent is written by Justice Breyer, with whom Justice O‟Connor joins. 167 Justice Breyer focuses on the issue: How are elements of a crime and sentencing factors to be treated?168 The majority concludes they should be treated exactly the same. 169 Justice Breyer says that he agrees with the analysis of the majority, but not the conclusion. 170 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 label to affix. But I cannot jump from there to the conclusion that the Sixth Amendment always requires identical treatment of the two.”171 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.” 172 He goes on to state that it is this outcome that leads him to believe the majority‟s Sixth Amendment interpretation is not right. 173 167 Id. at 2551. Id. at 2551-52. 168 169 Id. at 2552. The majority believes any fact (whether labeled an element or sentencing factor) necessary to increase the judge‟s sentencing power must be submitted to a jury. See id.. at 253443. 170 Id. 171 Id. Justice Breyer states that treating elements and sentencing factors identically will have consequences that “threaten the fairness of [the] traditional criminal justice system.” Id. 172 Id. Id. 31 173 The first option, according to Justice Breyer, is a “pure determinate” sentencing system.174 In this system each crime would carry a specific sentence. 175 For example, everyone convicted of robbery would receive a five year sentence. 176 Justice Breyer points out that the problem with this system is not disparity, as was the problem with indeterminate sentencing schemes, but uniformity. 177 In other words, criminals, who committed the same crime in very different ways, would receive identical punishments.178 “When dramatically different conduct ends up being punished the same way, an injustice has taken place.” 179 The other problem with this system, according to Justice Breyer, is that prosecutors have a tremendous amount of power “to manipulate sentences through their choice of charges.” 180 He points out that prosecutors can charge defendants with crimes bearing higher sentences and defendants, “knowing that they will 174 Id. Id. at 2553. Id. Id. Id. Id. 175 176 177 178 179 180 Id. In relation to defendants that wish to plea bargain, the majority rule forces defendants to surrender sentencing issues such as drug quantity when they plead guilty. Stephanos Bibas, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 YALE L.J. 1097, 1100-1101 (2001). To the many defendants that feel trial is undesireable, often the only hearing they have is a sentencing hearing, and the majority rule does away with sentencing hearings in front of a judge. Id. In addition, the majority rule allows prosecutors to constrain judges sentencing power based on what is charged in the indictment, because, according to the majority, if it is not charged in the indictment, it can not be used by the judge. See Id. 32 not have a chance to argue for a lower sentence in front of a judge, may plead to charges that they might otherwise contest.” 181 The second option is to return back to an indeterminate sentencing system. 182 In this type of system, the length of a defendant‟s sentence is almost entirely within the discretion of the judge.183 The problems with this type of system are obvious, including race-based disparities in the punishment of defendants who committed similar crimes. 184 Justice Breyer explains that a return to this type of system would take away much of the jury‟s power. 185 The jury would be responsible for finding a defendant guilty, but would have no control over the sentence itself. 186 The third option, as Justice Breyer explains, “is that which the Court seems to believe legislators will in fact take.” 187 This approach takes the existing structured sentencing schemes and modifies them to conform with the majority holding. 188 Judges would be able to find 181 Blakely, 124 S.Ct. at 2553. Id. 182 183 Id. Douglas A. Berman, The Roots And Realities of Blakely, 19 WTR C RIM. J UST . 5, 7 (2005) (judges had “unfettered discretion” to sentence defendants within the borad statutory ganes provede for criminal offenses); see also Mark D. Harris, ed., Blakely’s Unfinished Business, 17 Fed. Sent. R. 83, 2004 WL 3140892, *4 (Vera Inst. Just.) (judges had power to impose sentences as they saw fit within the wide statutory ranges of time). 184 Blakely, 124 S.Ct. at 2554; see also Douglas A. Berman, The Roots And Realities of Blakely, 19 WTR CRIM. J UST. 5, 7 (2005); The Truth About Mandatory Sentencing Guidelines, available at http://www.pixi.com/~itmc/Sentencing.html. In a system where a judge has discretion to sentence as he sees fit, it is easy to imagine large disparities in sentences of similarly situated defendants. Justice O‟Connor has described the system as producing severe disparities, often linked to racial bias. Blakely, 124 S.Ct. at 2544. 185 Blakely, 124 S.Ct. at 2554. Id. Id. Id. 33 186 187 188 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. 189 Justice Breyer attempts to explore how this would work in practice. This option could work in one of two ways.190 The first way would be for legislatures to enact a “highly calibrated” version of the pure determinate system. 191 They would subdivide each crime into a list of complex crimes. 192 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. 193 Justice Breyer suggests the problem with this system is that the prosecutor controls the punishment through control of the precise charge. 194 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. 195 189 Id. Id. Id. at 2555. Id. at 2554. Id. at 2555. 190 191 192 193 194 Id. Just like the pure determinate system he speaks of earlier, in relation to defendants that wish to plea bargain, the majority rule forces defendants to surrender sentencing issues such as drug quantity when they plead guilty. Stephanos Bibas, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 Y ALE L.J. 1097, 1100-1101 (2001). To the many defendants that feel trial is undesireable, often the only hearing they have is a sentencing hearing, and the majority rule does away with sentencing hearings in front of a judge. Id. In addition, the majority rule allows prosecutors to constrain judges sentencing power based on what is charged in the indictment, because, according to the majority, if it is not charged in the indictment, it can not be used by the judge. See Id. 195 Blakely, 124 S.Ct at 2555. Prosecutors will be required to charge in the indictment all relevant facts related to the crime. Id. Often, many relevant facts are left uncovered until the trial begins, in which case they may not be used in sentencing. See id. This system can not 34 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 of more than 500 grams of cocaine. 196 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.” 197 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.198 Justice Breyer‟s major concern with this type of system is the cost. 199 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. 200 He predicts that the complexity and added cost of bifurcated trials will likely lead to even more plea bargaining. 201 This means that punishments punish the same “real conduct” similarly, because the “real conduct” is often unknown until it‟s too late. See id. 196 Id. Id. Id. at 2556. 197 198 199 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)). 200 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). 201 Id. at 2557. 35 will not be set by judges or juries, but by “advocates acting under bargaining constraints.” 202 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.” 203 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.204 He goes on to explain that such rewrites would be highly unlikely. 205 Justice Breyer continues by explaining that history does not require the majority‟s decision.206 Historically, judges had discretion to “vary the sentence, within the range provided by the statute, based on facts not provided at the trial.” 207 In this case, the statute sets the maximum term of imprisonment at 10 years. 208 Determinate sentencing schemes, like Washington‟s, do not affect the statutory maximum, nor do they establish new elements of the crime.209 Justice Breyer explains that they limit the sentencing judge‟s discretion, which 202 Id. The “advocates” he speaks of are the prosecutors and defense attorneys who negotiate the plea agreements. 203 204 Id. Id. at 2558. 205 Id. Justice Breyer does not address why such rewrites would be unlikely. He only states that political impediments to legislative action stand in the way. Id. 206 Id. 207 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. 208 Id. (citing W ASH . REV . CODE ANN. §§ 9A.40.030(3), 9A.20.021(1)(b) (2000)). Id. 209 36 previously was unchecked, within the statutory range. 210 He explains that kidnapers in Washington know that they are risking up to 10 years in prison. 211 He continues by making the point that these types of sentencing schemes afford additional due process to defendants in the form of sentencing hearings before a judge. 212 Justice Breyer then discusses the risk of unfairness in allowing the legislature to make labeling decisions between elements and sentencing factors. 213 There is a risk that the sentencing factors become more important than the elements. 214 There is a risk that the judge would be able to sentence a defendant for murder after being convicted of illegally possessing a firearm. 215 Justice Breyer explains that the Due Process Clause is designed to take care of such problems, 210 Id. Indeterminate sentencing schemes provided the judge a great deal of discretion. Douglas A. Berman, The Roots And Realities of Blakely, 19 WTR CRIM. J UST. 5, 7 (2005) (judges had “unfettered discretion” to sentence defendants within the borad statutory ganes provede for criminal offenses); see also Mark D. Harris, ed., Blakely’s Unfinished Business, 17 Fed. Sent. R. 83, 2004 WL 3140892, *4 (Vera Inst. Just.) (judges had power to impose sentences as they saw fit within the wide statutory ranges of time). 211 Blakely, 124 S.Ct. at 2559. 212 Id. at 2560. Justice Breyer argues that the majority rule does away with the utility of sentencing hearings before a judge. Id. at 2555. 213 Id. Id. This is in response to Justice Scalia‟s point. See infra notes 93-94 and accompanying text. 37 214 215 and that judges are capable of using their own judgment to resolve such an issue.216 Justice Breyer points out that the alternatives are worse, practically and constitutionally. 217 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. 218 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 obviously written for application by an experienced trial judge?” 219 Justice Breyer then calls for further discussion on the concerns he has raised. 220 216 Blakely, 124 S.Ct. at 2560. “The Due Process Clause of the United States Constitution provides that no 'state shall deprive any person of life, liberty, or property, without due process of law.'” Kelli Hinson, Post-Conviction Determination of Innocence For Death Row Inmates, 48 SMU L. Rev. 231, 234 (1994). The Supreme Court has determined that the Due Process Clause requires two things: fundamental fairness and rationality. Id. 217 Blakely, 124 S.Ct. 2560. Id. at 2561. Id. at 2561-62. Id. at 2562. 218 219 220 38 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. 221 In addition, defendants who go to trial are put in a position of exposing prejudicial information. 222 Justice Scalia responds that a defendant can waive certain rights and submit to judicial factfinding on particular elements or sentencing factors. 223 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. 224 He also points out that the National Association of Criminal Defense Lawyers has submitted a brief in favor of the majority holding. 225 Justice Scalia goes on to address Justice Breyer‟s contention that the majority holding will lead to an increased number of plea bargains. 226 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. 227 221 Id. at 2541; See infra note 180 and accompanying text. Blakely, 124 S.Ct. at 2555; See infra note 194 and accompanying text. Blakely, 124 S.Ct. at 2541. Id. 222 223 224 225 Id. at 2542. “It is hard for to believe that the National Association of Criminal Defense Lawyers was somehow duped into arguing for the wrong side.” Id. 226 Id. at 2557; See infra note 201 and accompanying text. 39 Justice Scalia also addresses Justice Breyer‟s point that juries may not be capable of handling sentencing issues. 228 Justice Scalia‟s response is that some argue that justice should be left entirely in the hands of professionals. 229 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.230 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.” 231 While the Blakely case directly spoke about Washington State sentencing guidelines, it has an effect on the Federal Guidelines as well as many state guidelines. 232 If various states find the Blakely holding to apply to their sentencing schemes, they must determine how to proceed. 233 The state of Kansas has modified their 227 Blakely, 124 S.Ct. at 2542. Id. at 2561-62. Blakely, 124 S.Ct. at 2543. Id. Nancy King, Beyond Blakely, 51-DEC FED. LAW. 53, 57. 228 229 230 231 232 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. 233 Any state with a sentencing scheme that allows the judge to find facts legally essential to the punishment will be effected by Blakely. See Blakely, 124 S.Ct. at 2534-43. To comply with Blakely, those facts will either need to be found by a jury or be made no longer essential. See How Should the Congress Respond If the Supreme Court Strikes Down The Federal Sentencing Guidelines?, 17 Fed. Sent. R. 97, 2004 WL 3140894 (Vera Inst. Just.). The following states will likely be effected: Minnesota, North Carolina, Oregon, Tennessee, Washington, Alaska, 40 guidelines “so that every fact necessary to support a guideline sentence must be found by a jury „beyond a reasonable doubt.” 234 The Minnesota Sentencing Guidelines Commission presented Governor Tim Pawlenty with long term recommendations. 235 The recommendations created a system much like that in Kansas, where aggravating factors must be presented to a jury. 236 If the inclusion of such factors in the trial would be prejudicial to the defendant, then a bifurcated trial would be required. 237 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.” 238 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. 239 The Courts must determine what the legislature would have intended in light of the Blakely holding.240 Whether or not the Federal Arizona, California, Colorado, Indiana, New Jersey, New Mexico, Ohio. Douglas A. Berman, The Roots and Realities of Blakely, 19-WTR Crim Just. 5 (2005). 234 Craig M. Bradley, The Sentencing Conundrum, 40-DEC TRIAL 50, 51. 235 Minnesota Sentencing Guidelines Commission, The Impact of Blakely v. Washington on Sentencing in Minnesota: Long Term Recommendations, (September 30, 2004) (on file with author). 236 Id. at 15. Id. at 16. Id. 237 238 239 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)). When a portion of a statute is struck by courts, the courts must also determine what remaining portions should be struck. Id. The legislative originally intended to pass the entire statute. Id. If the entire statue can not stand, what would the legislature intend to do with the remainder? See id. 41 Sentencing Scheme is effected by Blakely was answered by the Supreme Court‟s January 2005 holding in the cases of United States v. Booker and United States v. Fanfan.241 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.” 242 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.243 i. Facts of Booker and Fanfan Defendant Booker was charged with possession with intent to distribute at least 50 grams of cocaine base. 244 The jury found him guilty of violating 21 U.S.C. § 841(a)(1), which has a 240 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). 241 United States v. Booker, 2005 WL 50108 (U.S.). 242 John Gibeaut, All Sides Wary Of Sentencing Ruling, available at http://www.abanet.org/journal/ereport/j14sentencing.html. 243 244 Booker, 2005 WL 50108 at *6 n.1. Id. at *5. 42 statutory sentencing range between 10 years and life. 245 The Federal Sentencing Guidelines require the District Court Judge to select a “base” sentence between 210 and 262 months in prison.246 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. 247 With the additional findings, the Sentencing Guidelines required that the judge select a sentence between 360 months and life in prison. 248 The judge imposed a sentence of 360 months. 249 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.250 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. 251 245 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. 246 Booker, 2005 WL 50108 at *5 (referencing United States Sentencing Commission, Guidelines Manual §§ 2D1.1(c)(4), 4A1.1 (Nov. 2003)). 247 Id. Id. Id. 248 249 250 Id. The Court of Appeals found that under Apprendi, the judge is not entitled to be a factfinder for legally essential facts. United States v. Booker, 375 F.3d. 508, 514 (2004). Defendant Booker has the right to have the jury determine the quantity of drugs he possessed. Id. 251 Booker, 375 F.3d. at 514. 43 Defendant Fanfan was convicted by a jury of conspiracy to distribute and to possess with intent to distribute at least 500 grams of cocaine. 252 According to the Federal Sentencing Guidelines the maximum sentence authorized was 78 months in prison. 253 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. 254 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. 255 The trial court relied on the holding in Blakely and did not use the additional facts in sentencing the defendant. 256 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.257 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. 258 Justice 252 Booker, 2005 WL 50108 at *5. The relevant statute is 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B)(ii). 253 Booker, 2005 WL 50108 at *5. Id. at *6. Id. Id. Id. at *4 Id. at *5. 254 255 256 257 258 44 Stevens‟ reasoning is very much in line with the reasoning of Blakely, holding 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.‟” 259 Justice Stevens continues by identifying the relevant facts/elements as “„any fact that increases the penalty for a crime beyond the prescribed statutory maximum.‟”260 Justice Stevens points out that if the Guidelines were merely advisory instead of mandatory, their use would not implicate the Sixth Amendment. 261 Justice Stevens spends little time dismissing the unpersuasive arguments of the Government and unequivocally holds that the Blakely holding must be applied to the Federal Sentencing Guidelines. 262 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 259 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)). 260 261 Id. at *8. The mandatory nature of the guidelines is very important. Id. The federal sentencing statute requires a judge to impose a sentence within the range dictated by the guidelines. 18 U.S.C.A. § 3553(b) (main ed. and Supp. 2004). To impose a sentence above standard range, the judge must set forth findings of additional fact. Booker, 2005 WL 50108 at *8. If the guidelines were advisory, the judge would have the authority to sentence a defendant anywhere between the statutory minimum and maximum for the offense based on the jury verdict alone. See id. at *16. 262 The Government produced three arguments in favor of not extending the reasoning of Blakely to the Federal Sentencing Guidelines. 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. Id. at *11. 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. Id. at 11-12. The Government‟s second point is dismissed after Justice Stevens weaves his way though each case presented by the Government and finds each of them off-point. Id. at *12-13. The Government‟s third point is also dismissed by Justice Stevens as he finds Congress‟ delegation to the Sentencing Commission does not exceed Congress‟ powers. Id. at *14. 45 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.” 263 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 wiped out the mandatory provisions of the Federal Sentencing Guidelines. 264 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.‟” 265 He starts out with his conclusion that certain provisions of the federal sentencing statute, that make the Guidelines mandatory, are incompatible with the Court‟s earlier constitutional holding, and must be severed. 266 He goes on to explain that after such modifications to the Federal Sentencing Act, the Federal Sentencing Guidelines are effectively advisory.267 263 264 Id. at *15. Id. Id. at *16 (quoting Pet. For Cert. in No. 04-104, p. I.). 265 266 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. Without the mandatory provisions, the judge no longer needs to become a fact-finder to impose any particular sentence. Booker, 2005 WL 50108 at *16. The judge will be authorized to impose any sentence between the statutory maximum and minimum based on a jury verdict alone. Id. 267 Id. 46 Justice Breyer explains that the Court must determine what “„Congress would have intended‟” in light of the Court‟s constitutional holding. 268 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. 269 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.270 Justice Breyer explains that Court‟s constitutional jury trial requirement is not compatible with the Act as intended by Congress for a number of reasons. First, the statute‟s text and language makes it clear that Congress did not intend for sentencing to be subject to a jury trial requirement.271 Second, the basic goal of Congress was to develop a system that based punishment upon the real conduct that underlies the crime of conviction. 272 The Court‟s 268 Id. (quoting Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 767 (1996) (plurality opinion)). When portions of statute are deemed constitutionally invalid, courts must determine if Congress would still have passed the valid sections had it known about the invalidity of other sections. Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 767 (1996). 269 Booker, 2005 WL 50108. at *18. Id. 270 271 Id. The statute‟s text states, “[t]he court [when sentencing will consider] the nature and circumstances of the offense and the history and characteristics of the defendant.” (18 U.S.C.A. § 3553(a)(1) (main ed. and Supp. 2004). “The court” refers to the judge alone, not the judge in conjunction with the jury. S. Rep. No. 98-225, p.51 (1983) (the Guidelines system will guide the judge in making sentencing decisions). 272 Booker, 2005 WL 50108 at *19. Prior to the Guidelines system, judges looked to number of out of court sources, including a pre-sentence report, to determine actual conduct and impose an appropriate punishment. Mark D. Harris, ed., Blakely’s Unfinished Business, 17 Fed. Sent. R. 83, 2004 WL 3140892, *4 (Vera Inst. Just.). Justice Breyer looks too the following provision from 18 U.S.C. § 3661 to determine that Congress expected this practice to continue: “[n]o limitation shall be placed on the information concerning the background, character, and conduct 47 constitutional jury trial requirement will often prevent a judge from tailoring the sentence to the real conduct as he sees it. 273 Third, interpreting the current statutes in a way that satisfies the Court‟s constitutional requirements would “create a system far more complex that Congress intended.” 274 Fourth, the high incidence of plea bargaining would make matters worse. 275 Fifth, “Congress would not have enacted a sentencing statue[] that make[] it more difficult to adjust sentences upward than to adjust them downward.”276 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.” Booker, 2005 WL 50108 at *19. Moreover, the Sentencing Guidelines allow a judge to reject a plea-bargained sentence if he determines, after reviewing the pre-sentence report, that the punishment is not appropriate for the defendant‟s actual conduct. United States Sentencing Guidelines § 6B1.2(a). 273 The judge‟s sentencing authority will be derived solely from facts determined by the jury. Booker, 2005 WL 50108 at *20. 274 Id. at *21. Indictments would have to allege far too many facts. Id. 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 . . .” Id. Further, a jury is not capable of understanding many of the factors judge use in determining sentences. Id. (pointing to the definitions of “relevant conduct,” “loss” in a securities fraud case, and “contemptuous behavior” as matter too complex for a jury). 275 Id. Congress wanted to link punishment with real conduct. 28 U.S.C. § 994(a)(2)(E); USSG § 6B1.2(a) (authorizing the Commission to develop policy statements assisting the sentencing judge to determine whether to accept or reject a plea agreement after reading about the defendant‟s real conduct in a pre-sentence report). With the Court‟s constitutional jury trial requirement, punishment in plea-bargained cases would reflect the skill of counsel, rather than the defendant‟s real conduct. Booker, 2005 WL 50108 at *22. A factor that a prosecutor chose not to charge “would be placed beyond the reach of the judge entirely.” Id. 276 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”). 48 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. 277 Justice Breyer explains that the Court must “„refrain from invalidating more of the statute than necessary.‟” 278 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.” 279 Justice Breyer explains that the excision of § 3553(b)(1), namely the provision that makes the Guidelines mandatory, would alleviate any Constitutional issue. 280 Without the mandatory Guidelines, the relevant sentencing range for constitutional purposes is that which is listed in the statute of the crime itself. 281 Justice Breyer makes the point that the remainder of the Act can function independently. 282 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.” 283 Those factors will also guide appellate courts in determining if a sentence is unreasonable. 284 Justice 277 Id. at * 24. Id. (quoting Regan v. Time, Inc., 468 U.S. 641, 652 (1984)). Id. internal citations omitted. Id. Id. Id. Id. Id. 278 279 280 281 282 283 284 49 Breyer goes on to explain that “[t]he ball now lies in Congress‟ court.” 285 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. 286 B. States Must Decide How To Proceed For Themsleves Until Congress acts, the Federal sentencing system has become Blakely compliant by the Supreme Court rendering the Guidelines advisory. The numerous states effected by Blakely are determining how to become Blakely compliant themselves. Minnesota, for example, has “decided that [their] statute was constitutional, but [they] had to modify the way in which [they] did [their] aggravated departures.” 287 Fortunately, the number of cases involving aggravated departures is limited. 288 In some cases they implement a bifurcated trial with the second jury determining aggravating factors. 289 California has a high proportion of sentences affected by Blakely.290 The California system is a non-guidelines/determinate system in which there is a 285 Id. at *28. Id. 286 287 The Future of American Sentencing: A National Roundtable On Blakely, 17 Fed. Sent. R. 115, 2004 WL 3140897 (Vera Inst. Just.). 288 Minnesota Sentencing Guidelines Commission, The Impact of Blakely v. Washington on Sentencing in Minnesota: Long Term Recommendations, (September 30, 2004) (on file with author). (In 2002 there were a total of 1,002 aggravated departures, representing 7.7% of the total 12,978 felony cases sentenced in that year). 289 The Future of American Sentencing: A National Roundtable On Blakely, 17 Fed. Sent. R. 115, 2004 WL 3140897 (Vera Inst. Just.). 290 Id. 50 base term plus enhancements. 291 The base term can be either a high, middle, or low term.292 The problem arises because the statute requires the judge to “impose the middle term unless he finds aggravating or mitigating factors.” 293 The enhancements are not a problem because they are charged in the indictment and tried in front of a jury. 294 Other states are not affected by Blakely for various reasons. Pennsylvania, for example, has sentencing guidelines that only apply to the minimum sentence. 295 The courts in Pennsylvania believe that they are unaffected by Blakely because the maximum sentence is left entirely to the judge‟s discretion. 296 How various states react to Blakely is still unfolding, but many state legislatures will be going back to the drawing board. 291 292 Id. Id. 293 Id. (citing Cal. Pen. Code § 1170(b)). Because the judge is required to impose the middle term absent additional findings, the judge is bound to that term unless the jury determines there are sufficient facts to increase the sentence. J. Bradley O‟Connell, Amazing Stories: Blakely v. Washington and California Determinate Sentences, available at: http://www.fdap.org/downloads/seminar-criminal/Blakely.pdf. 294 The Future of American Sentencing: A National Roundtable On Blakely, 17 Fed. Sent. R. 115, 2004 WL 3140897 (Vera Inst. Just.). Because the enhancements are charged in the indictment and found by a jury, the judge is not becoming a fact-finder in violation of Blakely. 295 296 Id. (citing Pa. Cons. Stat. § 2155 (1995)). Id. The Court must consider the guideline recommendations but are not bound by them. Id. Because the judge has the discretion to sentence up to the maximum allowable by statute, the judge‟s sentencing power is already derived from the jury verdict. Id. 51 V. CONCLUSION What started out as a case in the state of Washington, has turned out to have national impact quite quickly. Just seven months after Blakely made it clear that sentencing factors necessary for an upward departure, 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 the result of how judges begin to act with this new flexibility.‟” 297 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.298 Most current district court judges have been operating under the guidelines for years, and will likely take them seriously. 299 However, there will be a minority of judges who stray from the Guidelines, creating the unwarranted disparity that existed under the preGuidelines system. 300 This number seems likely to increase as the years go by and the bench is filled with judges who have no history with binding guidelines.301 297 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). 298 Id. 299 How Should Congress Respond if the Supreme Court Strikes Down the Federal Sentencing Guidelines? 17 Fed. Sent. R. 97, 2004 WL 3140894 (Vera Inst. Just.). 300 Id. Prior to the existence of the Guidelines, judges had discretion in setting an appropriate sentence as they saw fit, within the statutory limits for each offense. Douglas A. Berman, The Roots And Realities of Blakely, 19 WTR C RIM. J UST. 5, 7 (2005); Mark D. Harris, ed., Blakely’s 52 The Blakely decision may have resulted in a temporary return to an era where no mandatory guidelines exist. 302 But, a long overdue dialogue on sentencing law, policy, procedures and practices has begun. 303 The dialogue is overdue because modern sentencing philosophy has changed, but the appropriate structure and procedures have not been seriously rethought.304 Prior to enactment of the Guidelines, the judge‟s role was much different than the jury‟s.305 The jury was seen as a fact-finder and the judge as the sentencing expert. 306 Under modern determinate sentencing schemes, facts found by the judge have fixed consequences – “the judge finds x drug quantity, the result is y sentencing range.” 307 The judge has become just Unfinished Business, 17 Fed. Sent. R. 83, 2004 WL 3140892, *4 (Vera Inst. Just.). In a system where a judge has discretion to sentence as he sees fit, it is easy to imagine large disparities in sentences of similarly situated defendants. Justice O‟Connor has described the system as producing severe disparities, often linked to racial bias. Blakely v. Washington, 124 S.Ct. 2531, 2544 (2004). 301 How Should Congress Respond if the Supreme Court Strikes Down the Federal Sentencing Guidelines? 17 Fed. Sent. R. 97, 2004 WL 3140894 (Vera Inst. Just.). 302 In direct response to Blakely, the Supreme Court rendered the Sentencing Guidelines advisory in Booker. 303 See e.g. Craig M. Bradley, The Sentencing Conundrum 40-DEC Trial 50 (2004); Douglas A. Berman, Conceptualizing Blakely, 17 Fed. Sent. R. 89, 2004 WL 3140893 (Vera Inst. Just.). 304 Douglas A. Berman, Conceptualizing Blakely, 17 Fed. Sent. R. 89, 2004 WL 3140893 (Vera Inst. Just.). Prior to the 1980‟s sentencing was based on a medical, rehabilitative philosophy. Williams v New York, 337 U.S. 241, 247-48 (1949) (“[r]eformation and rehabilitation of offenders have become important goals of criminal jurisprudence”). Crime was seen as a moral disease and the judges were treated as experts attempting to cure the affected. Nancy Gertner, What Has Harris Wrought, 15 Fed. Sent. Rep. 83, 83-85 (2002). Modern sentencing philosophy is focused on punishing similarly situated defendants similarly. Id. 305 Douglas A. Berman, Conceptualizing Blakely, 17 Fed. Sent. R. 89, 2004 WL 3140893 (Vera Inst. Just.). 306 Id. Id. 53 307 another fact finder, doing exactly what the jury does: finding facts with specific sentencing consequences. 308 In other words, since sentencing was long conceived – at least formally, if not in actuality – as an enterprise designed to help cure the “sick” defendant, the idea of significant procedural rights at sentencing almost did not make sense. Just as patients are not thought to need “procedural rights” when being treated by a doctor, defendants were not thought to need procedural rights when being sentenced by a judge. But, of course it has been nearly a quarter century since the rehabilitative model of sentencing has held sway, and yet until Apprendi and Blakely came along, our sentencing structures still relied without much question on lax procedures for proving the truth of facts that could lead to extended sentences. 309 As the dialogue continues, state legislatures and Congress will likely head back to the drawing board to determine the direction sentencing reform will take over the next several years. 308 Id. Id. 309 54