The Law October 2004

Suspended Sentencing

The consequences of "the single most irresponsible decision in the modern history of the Supreme Court"
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When Dwight W. Watson first came before U.S. District Judge Thomas Penfield Jackson for sentencing, on June 23, the judge gave him six years in prison. Watson was the North Carolina tobacco farmer who paralyzed a section of Washington, D.C., for two days last year by driving a tractor into a pond on the National Mall and threatening to detonate an "organophosphate bomb." The federal sentencing rules suggested a maximum of sixteen months for Watson's crimes of making threats and damaging federal parkland. But in a time of heightened terrorism fears Judge Jackson felt that the incident's impact on the city—Washington, he said, had regarded Watson "as a one-man weapon of mass destruction"—justified a longer detention.

One day after Watson's sentencing, however, the Supreme Court handed down its blockbuster decision in Blakely v. Washington, and Judge Jackson had to backtrack. In Blakely, a kidnapping case originating in the state of Washington, the Court ruled that judges cannot use facts other than those brought before a jury to increase a convict's sentence beyond the standard set by state guidelines. So at a hearing a few days later Jackson cut Watson's time to the fifteen-plus months he had already served. "The Supreme Court has told me that what I did a week ago was plainly illegal," he told the defendant in court. "By my count, Mr. Watson, you're a free man in a few hours."

This was just the beginning. Within days of the Blakely decision the system of criminal sentencing in the United States was in turmoil. A few examples: A drug dealer in West Virginia saw nineteen of twenty years dropped from a sentence for conspiring to manufacture methamphetamine. In Tennessee a man convicted of raping an eighty-two-year-old woman got the minimum sentence of twenty-five years in prison. In Oklahoma a judge actually gave a bank robber three sentences for the same crime, saying he was unsure what was lawful under Blakely. By the time you read this, countless convicts will have had their cases affected by the ruling.

But Blakely did more than guarantee leniency for criminals in as many as 270,000 federal cases alone. It left state and federal legislatures wondering what the fundamental rules of sentencing were and which laws they would have to rewrite. Numerous states saw their sentencing rules imperiled, and the federal sentencing guidelines—the most ambitious effort to reform federal criminal sentencing in American history—were cast into grave constitutional doubt. The Justice Department was left unsure how to draft indictments so that people convicted of serious crimes would receive serious punishments.

Nor was clarity forthcoming, because in the aftermath of the Blakely decision the lower federal courts immediately split as to whether the federal guidelines must be scrapped. Some federal courts of appeals quickly ruled that the decision effectively invalidated them. Others ruled that Blakely did not apply to the federal guidelines. And the Second Circuit Court of Appeals, in a remarkable opinion, declared unanimously that its judges did not know what the decision meant and urged the Supreme Court to resolve the issue immediately to avert "what we see as an impending crisis in the administration of criminal justice in the federal courts." Both the Bush Administration, in court filings, and the Senate, in a nonbinding resolution, also urged the Court to take up the matter swiftly. And on August 2 the Court did so, agreeing to hear arguments on the day its new term begins in October. By the time you read this, the landscape may have changed dramatically.

In the incoherence of its principle, the awesome scope of its impact, and its sheer contempt for so many different institutions in American life, Blakely stands out as the single most irresponsible decision in the modern history of the Supreme Court. The case may never become an iconic example of judicial excess for either liberals or conservatives—either a Roe v. Wade or a Bush v. Gore. It doesn't involve a hot-button social issue, and it confounds the Court's normal ideological divide: Justice Antonin Scalia wrote the majority opinion for himself, his fellow conservative Clarence Thomas, and the liberal justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg. Dissenting were Chief Justice William Rehnquist, a conservative; the centrists Sandra Day O'Connor and Anthony Kennedy; and the more liberal Stephen Breyer. Neither major political movement can attack the majority without attacking some of the justices its partisans profess to admire most.

But as an example of judicial usurpation, Blakely has no modern parallel. It has deprived political institutions of their rightful authority on the basis of legal theories ill grounded in the Constitution—and has done so in a fashion profoundly disruptive to the democratic choices of the people's elected representatives and to the functioning of the courts. Roe, whether you love it or hate it, affected only abortion policy. Blakely, in contrast, razes the entire structure of something as basic to the justice system as criminal sentencing.

The Court's decision purports to limit judicial discretion; Scalia's opinion claims it will "give intelligible content to the right of jury trial" by "ensuring that the judge's authority to sentence derives wholly from the jury's verdict." In reality, however, the decision will more likely expand, not limit, the power of judges—specifically by preventing legislatures from meaningfully guiding their choices in handing down sentences.

For most of the nation's history sentencing was a matter for judges alone. Congress set the range of punishments a crime could carry, and judges decided how, within that range, to impose those punishments. The result was huge racial, regional, and other disparities in sentences for comparable offenses—disparities that often reflected the oddities of individual jurists. Congress responded with the Sentencing Reform Act of 1984, which sought to make sentencing more predictable. Under the sentencing guidelines that resulted, judges were compelled to plug a variety of factors into a complex formula that would provide a sentencing range. The guidelines are far from perfect: they sometimes produce gross injustices, most often because of mandatory minimums in drug cases, and many judges have chafed at being forced to impose such terms. Indeed, Blakely is best understood as part of a judicial backlash against the constraints of determinate sentencing, as the guideline-based system is called. But what a childish backlash it has been.

The counterrevolution began in 2000, with a case called Apprendi v. New Jersey. Apprendi involved a state hate-crimes law that allowed judges to impose sentences beyond the usual maximum if racial animus lay behind the crime. In this case a man who had fired a gun into a black family's house was sentenced to twelve years in prison—two years more than the maximum for firearm possession. The Court, however, struck down the sentence, because the defendant's racial motivation had not been proved to the jury; rather, it had been found by a judge. "Other than the fact of a prior conviction," the Court held, "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."

The theory behind Apprendi seems both simple and attractive: a fact that pushes a sentence above the statutory maximum for the offense is really an element of a more serious crime, and every element of a crime has traditionally had to be proved to a jury. But judges have always considered facts in sentencing that were not proved to the jury. So Apprendi forced the question of which sentencing factors must count as elements and which judges could still consider on their own. In Blakely the Court answered that question: anything that increases a sentence beyond the "standard range" set by law is by definition an element, so a judge may not consider it in sentencing unless it has been proved to the jury.

Ralph H. Blakely Jr. was not actually given a sentence beyond the ten-year maximum for second-degree kidnapping under a Washington State statute. In fact, he received only seven years and six months. Even this sentence, however, exceeded the standard range of the state's sentencing guidelines, a range the trial judge was permitted to exceed only if he found unusual circumstances—which in this case he did. But those circumstances had not been presented to the jury. In the opinion of Scalia and the majority, this meant that they could not be the basis for the greater sentence.

The problems with this approach are profound; indeed, its consequences are absurd. What would be allowed under Blakely? To name one possibility, a state legislature could define all felonies as punishable by anything from probation to life in prison, giving judges unlimited flexibility. Such a system, of course, is precisely what Congress was reacting against when it passed the sentencing-reform law. Nor, under Blakely, would it present a constitutional problem to have sentencing dictated entirely by law; all robbers, for example, could get twenty years without regard to circumstances. But as the consequences of mandatory minimums have shown, no legislature ought to be painting with such broad strokes.

According to the logic of Blakely, however, a legislature cannot create a system for increasing sentences according to a range of factors and actually require judges to employ that system. A guideline system would work constitutionally only so long as it was not mandatory, or—more ridiculous—so long as judges started with a maximum sentence and departed downward. After all, Apprendi and Blakely are concerned only with facts that increase a sentence, effectively becoming elements of a more serious crime—not with facts that may cause a judge to punish more leniently. So the federal sentencing guidelines might be salvageable by making all felonies punishable by, say, the maximum sentence the crime can carry, and then creating an elaborate system whereby judges would weigh various factors to reduce those sentences. Short of that, the only way to preserve guided sentencing would be to prove all sentencing factors to a jury, either at trial or in a separate hearing after a defendant's conviction—either way, a dramatic departure from traditional practice.

In short, it's almost inevitable that the decision will either make sentencing guidelines unacceptably rigid or loosen them to the point of meaninglessness, enabling judges to act according to their own whims. Right now, the defense bar loves this decision, because it lessens the sentences many current defendants will face. In the long run, however, the system the decision will create could end up being far less fair to defendants. Material now kept away from the jury as potentially inflammatory might have to be included in indictments and proved at trial—thereby exposing defendants to less impartial trials.

From Atlantic Unbound:

Flashbacks: "Looking Back at Brown v. Board of Education" (May 17, 2004)
Articles from 1954 and 1960 offer a look at how the Supreme Court's landmark desegregation ruling was initially received.

Then again, who knows? What makes this decision so deeply reckless is that nobody can say for sure what it means. Disruption is not always a bad thing. Some of the Court's finest hours, in fact, have caused widespread upset in political and legal institutions; think of the school-desegregation decisions. But consider also the differences between Brown v. Board of Education and Blakely. Brown stated a clear, morally compelling principle ("Separate educational facilities are inherently unequal") that gave voice to fundamental constitutional language ("No State shall … deny … the equal protection of the laws") and, in short order, gave crystal-clear guidance to any school district that cared to follow the law (desegregate schools with "all deliberate speed"). Blakely, in contrast, disrupts years of settled practice without protecting any coherent value—except the value, apparently so important to both right and left on the Court, of giving the justices the final say on everything.

Benjamin Wittes is an editorial writer specializing in legal affairs for The Washington Post and the author of Starr: A Reassessment (2002).
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