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The Law October 2004

Suspended Sentencing

The consequences of "the single most irresponsible decision in the modern history of the Supreme Court"

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.

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