The sentencing conundrum.

In Blakely v. Washington, the Supreme Court dropped a bomb on federal and many state sentencing systems by declaring a Washington state sentence, made under that state's sentencing guidelines, a violation of the Sixth Amendment. (1)

The petitioner, Ralph Howard Blakely, pleaded guilty to kidnapping his estranged wife. The facts he admitted in his plea supported a maximum sentence of 53 months under the Washington guidelines. But the court gave him 90 months, finding that he had acted with "deliberate cruelty," which under state law is grounds for increasing a criminal sentence. (2)

The Supreme Court reversed Blakely's sentence even though the 90-month term was less than the 10-year (120-month) statutory maximum for this crime. In Apprendi v. New Jersey, the Court had held that "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." (3) Since Blakely's sentence was less than the maximum, the state had assumed it was complying with Apprendi.

But the Blakely Court held 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
   .... In other words, the relevant "statutory
   maximum" is not the maximum
   sentence a judge may impose after finding
   additional facts, but the maximum he may
   impose without any additional findings. (4)

Under this reasoning, the most Blakely could get was 53 months.

The Court's decision, as the Blakely dissenters all pointed out, invalidated not only Washington's sentencing system but also, apparently, the federal system because both depended on post-verdict fact-finding by judges to determine sentencing. The majority declined to say whether the decision invalidated the federal guidelines but noted that the federal government, in an amicus brief, "question [ed]" whether the differences between the federal and Washington guidelines were "constitutionally significant." (5)

The decision threw the federal courts into an uproar: It appeared to mandate that all pending sentences be reconsidered, and it put future sentencing under the federal guidelines into question. Several courts have issued decisions attempting to interpret Blakely, and on the first day of the new term, the Supreme Court heard consolidated arguments in two of them: United States v. Fanfan, (6) a sentence from the U.S. district court in Maine, and United States v. Booker, (7) a decision by the Seventh Circuit.

The district court did not issue a formal opinion in Fanfan, but a partial transcript of the sentencing hearing is available. The defendant, Ducan Fanfan, was convicted of a conspiracy involving at least 500 grams of cocaine. Based solely on the amount of the drug, the judge would have had to impose a sentence of 63 to 78 months. At sentencing, the prosecution claimed that Fanfan had also possessed and sold crack cocaine, which under the Federal Sentencing Guidelines required a sentence of 188 to 235 months. (8)

The judge concluded that Blakely applied to the federal guidelines. Accordingly, he sentenced Fanfan to 63 to 78 months, based solely on the facts that were adduced at trial.

In Booker, the defendant was convicted of possession of at least 50 grams of cocaine with intent to distribute. After the verdict, the judge found that Booker possessed 566 grams of cocaine in addition to the 92.5 grams that the jury found he had, and that he had obstructed justice. The judge sentenced Booker to 360 months rather than the 262 months that would have applied without any judicial findings. (9)

Guidelines' 'vices'

Judge Richard Posner, writing for a majority of the Seventh Circuit, agreed that Blakely had invalidated the Federal Sentencing Guidelines: "It is hard to believe that the fact that the guidelines are promulgated by the U.S. Sentencing Commission, rather than by a legislature, can make a difference." (10) While the Sentencing Commission could certainly make possession of 658 grams of cocaine subject to a 30-year sentence, if proved to a jury or admitted by the defendant, "the vices of the guidelines (after Blakely) are ... that they require the sentencing judge to make findings of fact (and to do so under the wrong standard of proof). (11)

The Seventh Circuit also noted that Blakely expressly approved the pre-guidelines process, in which a judge made informal findings and exercised discretion in crafting a sentence. (12) But Blakely condemned the sentencing guidelines, which "command[ed]" such fact-finding. As the Supreme Court explained:

   Of course indeterminate schemes involve
   judicial fact-finding, in that a judge (like
   a parole board) may implicitly rule on
   those facts he deems important to the exercise
   of his sentencing discretion. But the
   facts do not pertain to whether the defendant
   has a legal right to a lesser sentence--and
   that makes all the difference insofar as
   judicial impingement upon the traditional
   role of the jury is concerned. (13)

The Seventh Circuit concluded that although the Supreme Court had upheld the sentencing guidelines against other challenges, the reasoning of Blakely clearly invalidated them. (14) Accordingly, it reversed Booker's sentence and remanded the case for re-sentencing.

The court said the government could agree to the 262-month sentence, strike a deal with Booker, or hold a "sentencing hearing at which a jury would have to find by proof beyond a reasonable doubt the facts on which a higher sentence would be premised." (15)

Dissenting Judge Frank Easterbrook argued first that since the Supreme Court had previously upheld the Federal Sentencing Guidelines (albeit against different types of challenges) and had specifically declined to address the issue in its Blakely ruling, it was inappropriate for a lower court to assume that Blakely had struck down the guidelines. (16)

Second, he argued that, contrary to the majority view, the fact that the federal guidelines were promulgated by an administrative agency rather than by the legislature made all the difference: Statutory requirements are elements of the crime that, according to longstanding precedent, must be proved beyond a reasonable doubt to the jury. The Federal Sentencing Guidelines are not statutes and therefore need not be treated as elements nor proved to a jury. Instead, Easterbrook argued, they are more like parole-release guidelines, which also affect how much time the defendant will actually serve and which the Court has upheld. (17)

Easterbrook's argument is clever, and other appeals courts have advanced it to uphold the federal guidelines. (18) We wouldn't be surprised if a majority of the Supreme Court adopts this easy "out" from the apparent mess it created in Blakely---especially since only one member of the Blakely majority would need to switch sides to produce this result. However, at oral argument, it did not appear that the Blakely majority was prepared to back down.

In any case, this argument essentially ignores the crux of Blakely. If the essence of the Sixth Amendment right to a jury trial is that only a jury can determine the facts that establish a particular sentence (or sentencing range)--without any enhancement by judicial fact-finding--then the flaw in the Washington system also exists in the federal guidelines, which require judicial fact-finding. The Booker majority and the two appellate courts that have joined it took this position. (19)

What happens next?

Assuming that the logic and reasoning of Blakely apply to the Federal Sentencing Guidelines, what consequences follow? If the Supreme Court invalidates the guidelines in Fanfan and Booher, what happens next?

Several alternatives have been suggested, none of them entirely desirable. The "Kansas Plan," offered by the federal public defenders, would modify the guidelines so that every fact necessary to support a guideline sentence must be found by a jury "beyond a reasonable doubt." This plan would severely restrict the government in several ways (which may be why the defenders proposed it).

For example, in some cases it could force the government to hold costly bifurcated trials, because some guideline facts (such as "relevant conduct," which usually means uncharged crimes) are so prejudicial that they should not be put before a jury until after the defendant has been found guilty. Other facts (such as whether the defendant was the leader of a criminal activity that involved five or more participants or that was "otherwise extensive") are too vague and open-ended for a jury to determine, and therefore, presumably, the government could not argue them.

Another suggestion is the "Guidelines Inversion Plan," which would require that the absence of guideline facts be considered a mandatory mitigating circumstance that would reduce the defendant's sentence. The proponents of this plan argue that it would satisfy Blakely because the guideline facts would no longer serve to raise sentences above the statutory maximum.

But on closer examination, this plan does not comply with Blakely---at least not if Justice Antonin Scalia's majority opinion is taken seriously. Under such a plan, the existence (or nonexistence) of the guideline facts would still determine whether the defendant was entitled to a particular sentence or sentencing range. Thus, under Blakely, the guideline facts still must be found by a jury.

A third idea would be to make the guidelines voluntary rather than mandatory. Congress could do this directly, authorizing sentencing judges to ignore the guidelines and choose any sentence between the statutory minimum and maximum. Or it could be done indirectly by raising the upper level of each guideline range to the statutory maximum. (20)

Either way, judges would regain substantial discretion in imposing sentences. This system would technically comply with Blakely, but two potential problems remain.

On the one hand, if sentencing judges truly exercise their restored discretion, then sentences will again become disparate, as they were before the guidelines were established. Moreover, under the indirect approach, this disparity will occur in an upward direction only, producing a net increase in sentence severity.

On the other hand, if sentencing judges eschew this restored discretion and continue to sentence exactly as they did under the guidelines, then the new guidelines won't be truly voluntary at all--just a thinly disguised end-run around Blakely. (21) However, if most judges adhered to the guidelines in most cases, we might get a good mix of uniformity and discretion.

In the end, the only sure way to comply with the requirements of Blakely (while not imposing intolerable burdens on the government) is to return to the old-fashioned system--traditional, discretionary sentencing by judges, based on all relevant information. This is precisely the consequence feared by Justices Sandra Day O'Connor and Stephen Breyer (who helped write the federal guidelines), because it would roll back the clock on what they view as 20 years of desirable evolution in sentencing.

The majority justices in Blakely may or may not agree that these changes have been desirable, but they seemed to consider that question beside the point. According to the Blakely Court, what is all-important is that the framers of the Sixth Amendment believed that juries, not judges, should find all the facts that determine a defendant's maximum sentence.

At press time, the Court had not yet ruled on Fanfan or Booker. But if Blakely, and the oral argument are any guide, it appears that a majority of the Court is entirely willing to let the chips fall where they may.

Notes

(1.) 124 S. Ct. 2531 (2004).

(2.) Id. at 2535.

(3.) 530 U.S. 466, 490 (2000).

(4.) Blakely, 124 S. Ct. 2531, 2537 (emphasis in original).

(5.) Id. at 2538 n.9.

(6.) No. 03-47, 2004 WL 1723114 (D. Me. June 28, 2004), cert. granted, 2004 WL 1713655 (U.S. Aug. 2, 2004) (No. 04-105).

(7.) 375 F.3d 508 (7th Cir. 2004), cert. granted, 2004 WL 1713654 (U.S. Aug. 2, 2004) (No. 04-104).

(8.) Fanfan, No. 03-47, 2004 WL 1723114, at *2.

(9.) Booker, 375 F.3d 508, 509.

(10.) Id. at 511.

(11.) Id. (emphasis in original).

(12.) Id. at 512 (citing Blakely, 124 S. Ct. 2531, 2540).

(13.) 124 S. Ct. 2531, 2540 (emphasis in original).

(14.) Booker, 375 F.3d 508, 515.

(15.) Id. at 514.

(16.) Id. at 516-17 (Easterbrook, J., dissenting).

(17.) Id. at 520.

(18.) See, e.g., United States v. Hammoud, 378 K3d 426 (4th Cir. 2004) (en banc); United States v Koch, 383 F.3d 436 (6th Cir. 2004).

(19.) United States v. Ameline, 376 K3d 967 (9th Cir. 2004); United States v. Mooney, No. 02-3388, 2004 WL 1636960 (8th Cir. July 27, 2004), vacated for rehearing en banc, 2004 WL 1636960 (8th Cir. Aug. 6, 2004).

(20.) Frank Bowman, Memorandum Presenting a Proposal for Bringing the Federal Sentencing Guidelines into Conformity with Blakely v. Washington, 16 FED. SENT. REP. 364 (2004).

(21.) As Bowman freely concedes (indeed, it is one of the arguments for his proposal): "The practical effect of such an amendment would be to preserve current federal practice almost unchanged .... [T]he likelihood that judges would use their newly granted discretion to increase the sentences of very many defendants above now-prevailing levels seems, at best, remote." Id. at 367.

CRAIG M. BRADLEY is the James Louis Calamaras Professor of Law at the Indiana University School of Law in Bloomington. He can be reached by e-mail at [e-mail]. JOSEPH HOFFMANN is the Harry Pratter Professor of Law at the university.