JURIST Guest Columnist Sandra Jordan of the University of Pittsburgh School of Law considers what might happen if, as anticipated, the US Supreme Court applies its reasoning from its June 2004 Blakely ruling to the federal sentencing guidelines in two companion cases set to be argued in October.
The decision in Blakely v. Washington was issued on June 24, 2004. Blakely involved an unsympathetic defendant who kidnapped his wife, held her at gunpoint and threatened both his wife and son with bodily harm. Blakely entered into a plea agreement with the government and pled guilty to a lesser crime of second degree kidnapping rather than the more serious first degree kidnapping charge. As a result of the plea arrangement, the anticipated sentence under the Washington State guidelines was 53 months in prison. The statutory maximum for this category of kidnapping was 10 years.
At the sentencing hearing, the judge received evidence of the specific nature of the offense, including the extreme circumstances under which it occurred. After a three day hearing, the judge determined that Blakely acted with "deliberate cruelty because of the way in which he maneuvered the kidnapping," and imposed a sentence of 90 months. On appeal, the Washington Court upheld the sentence, finding that the 10 year statutory maximum was sufficiently broad to encompass a guidelines range of 53 months. Thus, the sentence did not violate Apprendi which dealt with statutory maxima, not guideline ranges.
The United States Supreme Court reversed Blakely's sentence. In a 5-4 opinion, Justice Scalia concluded that the sentence was improper in light of the Court's earlier decision in Apprendi v. New Jersey. Scalia held that a sentence cannot withstand constitutional scrutiny if it is based on information not admitted by the defendant or found by a jury beyond a reasonable doubt. Because Blakely did not admit to deliberate cruelty, his sentence fell within the reasoning of Apprendi.
Blakely threatens the federal guidelines because the same analysis used to dismantle the Washington sentencing scheme cripples the federal system. Although the Blakely majority expressly stated that "[t]he Federal Guidelines are not before us, and we express no opinion on them," it is evident that the guidelines or some aspect of their application may be vulnerable under Blakely review. The key section of Blakely that threatens the federal guidelines is the reasoning that defines the "statutory maximum." Blakely announced a radically different definition of statutory maximum: "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant."
The trouble is that over 44% of sentences in federal court are based on sentencing enhancements that are not proven to a jury or admitted by the defendant. These enhancements, also known as "relevant conduct" in federal court, have the practical effect of increasing, even quadrupling, federal prison time to be served. Relevant conduct can increase a sentence many years, and it need never be proven to a jury or established beyond a reasonable doubt. As a result, thousands of federal sentences are based on information that may be determined to be unconstitutional in light of the Blakely ruling. If the Court holds the federal guidelines to the same standard as it applied to the Washington sentencing scheme, as expected, then Blakely review can potentially disrupt the sentences of thousands of federal prisoners.
Besides the logistical problems that will result if the federal guidelines are struck down or held to the Blakely microscope, legal observers are watching closely to discern what guidance the Court will lend to the sentencing process. If the Court elevates the role of the jury to include fact-finding obligations, jurors could then assume much more power in the trial of criminal cases. This result brings its own set of problems, notably the consideration of information that would otherwise be excluded during the guilt phase of a trial.
The current interpretation of the federal sentencing guidelines allows the government to enhance the defendant's sentence by incorporating "relevant conduct" information that would otherwise be excluded from the trial and use this same information at the time of sentencing. This strategy, condoned by the courts until now, has contributed to our swelling prison population in the United States. Blakely's rationale is sound and founded on the principle that punishment should be based only on the facts of the case under deliberation.
The rules of evidence traditionally keep certain types of information away from the jury, such as prior bad acts, because of the potential for mishandling. Rule 404(b) of the Federal Rules of Evidence is designed to ensure that the conviction is based solely on the information presented at trial, and not other information from prior criminal activity or conduct for which the defendant has been acquitted. The prosecutor certainly wants to introduce 404(b) evidence precisely because of the potential jury misuse. Currently this information is available as relevant conduct at sentencing. If this type of evidence is considered to be Blakely information that elevates the punishment, then the government must both allege and prove their existence to a jury beyond a reasonable doubt. Jurors will then decide a variety of prior wrongs in addition to the present charges.
Interestingly, the federal sentencing guidelines were established after the state of Washington constructed its sentencing scheme designed to guide judicial discretion. The federal government and other states followed with their own sentencing guidelines systems. In other areas of law states have followed the federal standard as with the Federal Rules of Civil Procedure and the Federal Rules of Evidence. This modeling is absent in the area of sentencing mainly because the federal guidelines are despised by almost all who have intimate working knowledge of their deficiencies, inflexibilities and harshness. Judges, defense counsel, the public, and even some prosecutors have voiced their displeasure with the harshness of the guidelines and the manner in which they impose punishment without regard to individual situations. The most hard-core supporter of the guidelines is the Department of Justice which continues to retain the most power under the sentencing scheme as it is currently constructed.
Perhaps for the first time since the passage of the federal guidelines in 1987, there is an opportunity to re-evaluate their actual effectiveness as they currently operate. Granted, the guidelines standardized the sentencing process. However, one unanticipated result of the guidelines was that they shifted sentencing power from the judicial branch to the executive branch. Prosecutors now control the entire criminal prosecution, including sentencing, by negotiating the plea and any crime-specific or extraneous factors which determine the ultimate sentence. Most observers would agree that the result has been a skewed sentencing jurisprudence which certainly was not contemplated by the drafters of the guidelines system. Judges have resigned themselves to the reality that the guidelines leave no room for debate or compromise. Now Blakely opens the dialogue on sentencing once again, something that is certainly overdue. If the guidelines do not survive in their entirety, it presents an opportunity to revamp sentencing policy and to factor out all of the troubling concerns with the guidelines. With an open and inclusive dialogue, change can reflect that which is desirable in sentencing and ferret out the overly formulistic approach that troubled so many guidelines experts. This is a welcome scenario.
Sandra Jordan is an Associate Professor at the University of Pittsburgh School of Law. She served for almost 10 years as an assistant US attorney for the Western District of Pennsylvania, eventually heading the White Collar Crimes unit of the US Attorney's office.