[Deathpenalty]death penalty-related news----USA
rhalperi at mail.smu.edu
Tue Jul 6 16:28:46 CDT 2004
The Supreme Court's Decision in Blakely v. Washington:
A Watershed Ruling that will Usher In Much Needed Sentencing Reform
By MARK H. ALLENBAUGH
Tuesday, Jul. 06, 2004
On June 24, in a 5-4 opinion, the Supreme Court decided the case of
Blakely v. Washington. It held that "the maximum sentence a judge may
impose" is one "solely [based upon] . . . the facts reflected in the jury
verdict or admitted by the defendant." (Emphasis in original). In other
words, "[w]hen a judge inflicts punishment that the jury's verdict alone
does not allow . . . the judge exceeds his proper authority."
The majority in Blakely was made up of an unlikely alliance of
Justices--Scalia (the opinion's author), Stevens, Souter, Thomas, and
Ginsburg. Few predicted this stunning ruling - which has already
dramatically changed the face of sentencing, and will continue to do so
for years to come.
On its face, this holding is contrary to the practice in many state courts
and in every federal court across the nation. In the federal system, as in
many state systems, judges routinely consider evidence outside of the
jury's verdict or the plea agreement when applying sentencing guidelines,
or imposing mandatory minimum punishments. After Blakely, however, they
will no longer be able to do so.
How the Federal Sentencing System Currently Works
To understand how much Blakely will change the federal sentencing system,
it's necessary first to explain briefly how the system currently works.
Originally, federal sentencing - like many states' sentencing - relied
almost exclusively on the sentencing judge's discretion to pick a sentence
between a large range spanning the legislatively-determined minimum to the
legislatively-determined maximum. In addition to this arbitrariness, was
the fact that whatever sentence was imposed could subsequently be
shortened at the discretion of a parole board.
The result was that a person with the same criminal record (or lack
thereof) who had committed the same crime, could receive or serve a vastly
different sentence based on which judge that person happened to appear
before and the make-up of the parole board. And that, as Congress
recognized, was very unfair.
That all changed with the creation of the U.S. Sentencing Commission and
the Federal Sentencing Guidelines by Congress in 1984. Among other things,
parole was abolished, so defendants actually served their full sentences.
And since the Guidelines, while judges still choose within a range of
possible sentences, the range is much smaller, and it is constrained by
the Guidelines themselves.
The good news is that sentences are now much more uniform; the same
defendant is apt to get at least very roughly the same sentence no matter
what judge he appears before. But for those who care about jury trial
rights, there's a lot of bad news, too.
Although the ranges of sentences d now smaller, the judge still must
figure out which range is proper for a given defendant. Before the
Guidelines, the judge just looked to the minimum and maximum penalties in
the statute under which the defendant was convicted and sentenced
according to what he or she believed was fair. But after the advent of the
Guidelines, everything changed.
Now, the federal sentencing judge is called upon to make a number of
findings of fact. While the jury finds guilt, the judge must go far beyond
that finding. For example, in a fraud case, he must determine as a matter
of fact the amount of fraud involved. And in a case involving a group of
criminals, he must determine what role a given defendant played - was he a
manager or organizer, or was he closer to a mere flunky?
Some of these decisions are straightforward: If everyone agreed at trial
that $10,000 was stolen from a safe, then it's a no-brainer to choose the
proper sentencing range. A drug "mule" who simply carries drugs is
obviously a flunky; a Mafia boss is obviously a leader.
But some of these decisions are much less straightforward: If testimony
differed as to how much money was stolen from the safe, who should be
believed? If a former drug mule took on some other tasks, does that make
him an "organizer"?
The answers to these more difficult questions can dramatically change a
sentence. But, under the Guidelines, it is left to the judge, not a jury
to answer them - despite the fact that the Constitution specifically
protects the right to a jury trial in criminal cases.
To make matters even worse, under the Guidelines system, the judge
deciding on a sentence legally can look at a great deal of evidence the
jury had never - and legally could never - have seen because the rules of
evidence do not apply at sentencing. Indeed, the judge can look at
evidence of a crime with which the defendant was never charged, and even
evidence of a crime of which the defendant was acquitted.
Finally, when the judge looks at all this evidence, and makes fact
findings based on it, he does not have to follow the same standard the
jury did: "beyond a reasonable doubt." He can accept facts if he finds by
a mere "preponderance of evidence" - roughly, more likely than not -
standard that they are true.
The result of all these rules is that once a defendant has been convicted
of or pleaded guilty to at least one count, a whole host of other evidence
can come in at sentencing. And this evidence, taken together, may push a
defendant's sentence up far, far higher than he may have been expecting.
Indeed, as Justice Scalia's majority opinion in Blakely points out, under
such a system, "a judge could sentence a man for committing murder even if
the jury convicted him only of illegally possessing the firearm used to
commit it--or of making an illegal lane change while fleeing the death
scene." Such scenarios led a majority of the Court to find that allowing
the judge to make fact findings on his own during sentencing, that were
not made by the jury, improperly infringes the constitutional jury right.
One Result of Blakely: Hundreds of Thousands of Resentencings
The Federal Sentencing Guidelines were not themselves before the Court.
But since Blakely, at least three federal judges have already ruled that
the Guidelines now are unconstitutional - inasmuch as they leave to the
judge, and not the jury, the finding of facts that enhance sentences. It
seems plain that these rulings are correct, and will be upheld on appeal -
if the Department of Justice even bothers to appeal them.
But if the Guidelines are unconstitutional in this respect, how will
federal courts now proceed?
Some real-world problems are going to immediately arise. And they will
require quick, but well-thought-out, decisions on the part of Congress and
the legislatures of many states.
To begin, judges will be overwhelmed, for the criminal caseload will
dramatically increase. As Justice O'Connor noted in her dissent in
Blakely, there are nearly a quarter-million defendants who may be eligible
for resentencing now - and this is just at the federal level.
Doubtless, numerous state defendants will also seek resentencing if their
state's system, like the federal system, allowed judicial factfinding to
be the basis of sentences.
In short, Blakely has opened the resentencing floodgates. Our courts must
be prepared to meet the onslaught quickly.
Another Result of Blakely: A Change in Plea and Trial Dynamics
Of course, Blakely will change not only how great the system's caseload
is, but also how it works.
First, let's consider the many, many federal criminal cases that result in
plea bargains--approximately 95%. In such cases, the Government now knows
it will have to work harder to obtain the same sentences. As a result,
defendants now will have more leverage during the plea negotiation stage.
In addition, defendants will be more likely to take a gamble at trial by
putting the government to the test. They'll do so because they know that
now, the government will not only have to prove guilt to a jury beyond a
reasonable doubt, but it will also have to do the same with all the facts
that could potentially increase the defendant's sentence.
Trials, of course, are costly endeavors. If more defendants indeed opt for
trial, the cost to the government - and the judicial system - will only
increase. And it's likely that if the increase is substantial, the already
over-burdened judicial system simply will not be able to handle the
influx. Consequently, legislatures will have to act quickly to fill
judicial vacancies as well create more judgeships.
How Will Blakely Change the Way Sentencing Itself Is Done?
The most direct result of Blakely is that federal judges must change the
way they sentence convicted defendants. There seem to be three possible
options, consistent with Blakely, as follows:
First, the judge could impose a sentence based precisely on that
information - and only that information - contained within the confines of
the jury's verdict or the plea agreement. In effect, however, that would
mean that the judge could only impose the minimum sentence authorized by
the Guidelines or, where applicable, by statute.
This would mean, however, that a defendant who may have been facing 20
years in prison based upon now-irrelevant conduct could get as little as
six to twelve months. In fact, that is precisely what happened in the
decision of the U.S. District Court for Southern District of West Virginia
in United States v. Shamblin last week.
Second, the judge could bifurcate all criminal trials into guilt and
penalty phases - as is currently done in death penalty cases. The guilt
phase would proceed like a normal criminal trial. The penalty phase would
ask the jury to find all facts necessary, under the Guidelines, for the
judge to impose a sentence in accordance with the Guidelines.
This second option is a logical extension of Blakely. Still, it is quite
impractical given the complexity of many sentencing factors; the jury
might be asked numerous factual questions at the sentencing phase.
Moreover, there is no existing procedure for such "sentencing juries" - so
bifurcation will have to wait until such a procedure exists. Nevertheless,
a federal judge in New Jersey has decided to devise just such a procedure.
Finally, the third option would be for the judge to treat the Sentencing
Guidelines as merely advisory, with no legal effect. The judge could then,
in theory, choose any sentence from the statutory minimum, to the
statutory maximum, set for the crime of which the defendant was convicted.
On this approach, since the Guidelines wouldn't be law, they presumably
also wouldn't be unconstitutional under Blakely. U.S. District Judge Paul
Cassell of the United States District Court for the District of Utah chose
this option in the recent case of United States v. Croxford.
This may be the most practical approach in the short term. But in the long
term, it would only reintroduce the very problems that sentencing
guidelines were meant to address: Unfairness when sentences differed based
on what judge was handing them down, and uncertainty and unpredictability
as to what sentence a defendant would face if convicted or if he pleaded
Does Blakely Also Mean the End of the U.S. Sentencing Commission?
Blakely may not only mean the end of the Federal Sentencing Guidelines -
in their current form, at least - but also the end of the U.S. Sentencing
Commission as we know it.
Traditionally, defining crimes and deciding on sentencing ranges has been
within Congress's sole purview. But the Sentencing Guidelines changed all
that. They were created not by Congress, but by the U.S. Sentencing
Commission (although Congress reserves the right to veto any actions of
In constitutional law, the non-delegation doctrine holds that Congress
cannot give too much of its power away. Some thought that with the
Sentencing Commission, it had done just that. But in Mistretta v. United
States, the Supreme Court, by a vote of 8-1, held otherwise, and allowed
the U.S. Sentencing Commission to stand.
The lone dissenter in Mistretta was Justice Scalia - who accused the
Commission of being "a sort of junior-varsity Congress." Now, ironically,
by writing the Blakely opinion, Scalia may have dealt the Commission its
final blow, wiping out this j.v. team.
Because every sentencing factor now identified by the Commission has
become an element of an aggravated offense, the Guidelines spell out
actual elements of crimes, something only Congress has the authority to
Blakely's Legacy: The Opportunity for Needed Reform
In the world of federal criminal law, the sky is falling - but not a
moment too soon. Today on the Hill, Congress is conducting a
hastily-convened hearing on the topic Defending America's Most Vulnerable:
Safe Access to Drug Treatment and Child Protection Act of 2004 that would,
among other things, dramatically increase mandatory minimum sentences for
some first-time drug offenders from one to ten years, wreak havoc with the
Federal Sentencing Guidelines, and further erode judicial sentencing
discretion to impose sentences that truly fit the crime rather than
appease the political agenda of some members of Congress.
With high mandatory minimums and high sentences so easy to procure, our
federal prisons already are operating at over 133% of their capacity and
constitute the largest prison system in the nation. Such legislation,
therefore, merely exacerbates the inequity of a sentencing system that
doles out to thousands unfairly harsh - and in some cases, stratospheric -
sentences, often for minor drug offenses or the like.
Blakely hopefully will put the brakes to such legislation. But it
shouldn't be seen as a stopping point, but rather as the beginning of a
new sentencing era. It provides an opportunity to begin a new era of
reform that moves away from knee-jerk, tough-on-crime statutes, and toward
more reasonable, responsible and intelligent sentencing systems.
Mark H. Allenbaugh, an attorney in private practice, is a nationally
recognized expert on federal sentencing, law, policy and practice, and is
a co-editor of Sentencing, Sanctions, and Corrections: Federal and State
Law, Policy, and Practice (2d ed., Foundation Press, 2002). Among other
activities, he currently serves as the Chair of the Federal Sentencing
Guidelines Task Force for the D.C. Chapter of the Federal Bar Association,
Co-Chairs the Federal Sentencing Guidelines Committee for the National
Association of Criminal Defense Lawyers, and is a member of the American
Bar Association's Corrections and Sentencing Committee. Prior to entering
private practice, he served as a Staff Attorney for the U.S. Sentencing
Commission. The views expressed herein are his own and do not necessarily
reflect the views of any of the named organizations. He can be reached at
mark at fedsentencing.com.
A Significant Decision that May Not Matter:
The Supreme Court Holds That Only Juries, Not Judges, Can Make the Factual
Determinations That Increase Sentences
By SHERRY F. COLB
Tuesday, Jun. 29, 2004
Last week, in Blakely v. Washington, the U.S. Supreme Court announced that
a judge in a criminal case cannot base an increased sentence on his own
factual determinations. In other words, a jury - not a judge - must draw
every conclusion of fact that is necessary to a convicted defendant's
This ruling has sent a wave of anxiety through the prosecutorial
community, not only in the state of Washington - where the case arose -
but also in the federal system.
The reason federal prosecutors are so concerned is that the U.S.
Sentencing Guidelines provide for the same sort of post-verdict judicial
fact-finding that the Court in Blakely declares a violation of the Sixth
Amendment jury trial right. As a decision affecting current prisoners,
moreover, Blakely may call into question the thousands of sentences
imposed under the existing regime.
Ultimately, however, in spite of all of the fanfare, Blakely will probably
do little to alter the jury's role in future criminal cases.
The Sentencing of Ralph Blakely
The basic facts of the case were these: Ralph Howard Blakely, Jr., pleaded
guilty to kidnapping his estranged wife. Absent additional findings by the
judge, the relevant Washington statute provided for a maximum sentence of
53 months imprisonment. After reviewing the evidence, though, the judge in
the case determined that Blakely had acted with "deliberate cruelty" in
carrying out the kidnapping. Accordingly, the judge imposed an
"exceptional" sentence of 90 months, permitted by the statute in such
In making the "deliberate cruelty" finding, the judge drew factual
conclusions above and beyond those necessary to the guilty verdict. He
then imposed an upward departure on the basis of those facts.
It was this departure by the judge that the Supreme Court declared
invalid. Its objection was that the judge enhanced the defendant's
punishment without a jury's having found all of the facts essential to
that enhancement beyond a reasonable doubt (and without the defendant's
having conceded all of the facts as part of his guilty plea).
The Jury Trial Right: The Right To Have a Jury Find All Sentencing Facts
The right to a trial by jury, explained the Court's majority opinion, is
not just the right to a jury verdict. It is an entitlement to have a jury
determine every single fact that forms the foundation for any part of a
In this case, as well as in the primary precedent that it applies -
Apprendi v. New Jersey - the Supreme Court purportedly cut through some of
the formalism that had previously plagued criminal constitutional law.
As every first year student learns in her criminal law class, a crime is
composed of several "elements." These elements typically include "mens
rea" (referring to the defendant's required state of mind, such as intent
or recklessness), "actus reus" (referring to the defendant's action, like
pulling the trigger on a gun or throwing a punch), a harmful result (such
as the death of a victim), and causation (referring to a link between the
defendant's action and the harmful result).
The elements of first degree murder, for example, might be defined to
include an intention to kill, an act to carry out that intention, a death,
and a causal link between the defendant's act and the death.
The defendant accused of first degree murder, as I just defined it, has
long had the right to have a jury consider the evidence and decide whether
the state has proven each listed element beyond a reasonable doubt. Once
the jury does so, however, lawmakers previously thought that a judge could
go on to sentence the defendant to a longer or shorter prison term (or to
the death penalty, if the law so allowed) on the basis of additional
evidence on the question of what an appropriate sentence might be.
Suppose, for example, that the defendant had a history of extreme violence
and committed the murder in question in a particularly sadistic way. These
would be reasons for imposing a harsher sentence. On the other hand, the
defendant might be a kind person who made one mistake and is unlikely to
hurt anyone in the future. This would be a reason for mitigating the
harshness of the sentence.
These additional facts regarding the character and dangerousness of the
defendant might be called "sentencing facts," while the facts necessary to
finding the defendant guilty of murder might be termed "guilt facts."
Prior to the Court's Apprendi line of cases - which culminated in the
recent Blakely decision - lawmakers had believed they could specify that
juries need only consider guilt facts, while judges may (or must) consider
But if the murder statute had instead called character, dangerousness, and
a history of bad behavior "guilt facts" or "elements" of the offense, it
was understood that the jury rather than the judge would have to pass on
The distinction articulated here is a formalistic one. Whether the facts
are classified as elements or features of sentencing, a person would have
to kill another person intentionally and be dangerous, bad, and sadistic
in carrying out the act in order to receive the most severe sentence
available. Simply classifying a finding as a sentencing fact, however,
relieved the prosecutor of the obligation to prove some of those facts to
If the right to a jury trial is a constitutional limit on state and
federal legislative power, the ability to re-label facts in this way would
seem effectively to undermine the Sixth Amendment, allowing an easy
end-run around its requirements. Indeed, this is the explanation Justice
Scalia gave, in his majority opinion in Blakely, for the Court's ruling
that a jury must decide all punishment-increasing facts, not just those
facts the legislature labels "elements."
Trading Formalism for Formalism
Blakely would seem, then, to be a healthy departure from formalism - that
is, from allowing formal labels to affect the breadth of the right to a
jury trial. The problem, however, is that Blakely replaces that old guilt
facts/sentencing facts formalism with a formalism of a different sort.
Consider why it is, on the majority's account, that a jury rather than a
judge must determine all facts necessary to a sentence: because it is the
jury that "authorizes" the judge to impose a sentence. If the judge
herself is determining facts necessary to a sentence, then she exceeds the
scope of the jury's verdict and thus the authority it has granted her. She
cannot do that without violating the Sixth Amendment right to have the
jury try the defendant.
But does a jury really authorize a severe sentence merely by making all of
the requisite fact findings?
Jurors Can't Truly Authorize Sentences Of Which They Must Remain Ignorant
In United States v. Pabon-Cruz, Judge Gerard Lynch of the Southern
District of New York presided over the trial of Jorge Pabon-Cruz for
knowingly receiving or distributing child pornography and for advertising
to receive or distribute child pornography. In the course of instructing
the jury prior to deliberations, Judge Lynch told jurors that a conviction
would result in a mandatory minimum sentence of ten years imprisonment. He
gave this information to the jurors, he explained, because of the
Draconian nature of the sentence.
One might say, in the language of Blakely, that Judge Lynch was providing
jurors with the knowledge of the sentence that the jury would be
"authorizing" if it found the defendant guilty. But the U.S. Court of
Appeals for the Second Circuit found the revelation of sentencing
information to the jury to be a clear abuse of discretion by Judge Lynch.
It held, that is, that the judge was wrong to tell jurors about sentence
length. It insisted that jurors be kept in the dark.
The U.S. Supreme Court, and particularly Justice Scalia - the author of
Blakely - would almost certainly have agreed with the Second Circuit's
ruling. On the Court's view (as previous cases have made explicit), the
jury is supposed to find facts and not to concern itself with the legal
consequences of those findings.
If jurors are to protect a defendant from government oppression, however,
it might be helpful for them to know what the government has in store for
a defendant against whom they find facts. It is otherwise somewhat
disingenuous to say that the jury has truly "authorized" a sentence to
which it might in fact be strongly opposed.
Another Problematic Formalism: Blakely Is Easily Circumvented
Another, more obvious, formalism put in place by the majority in Blakely,
and discussed by Justice Breyer in his dissent, is the continuing capacity
of judges to find mitigating facts on the basis of which the judge may
depart downward in sentencing.
Surely it does not violate the Sixth Amendment right of a defendant to a
jury trial for a judge to be able to make findings and grant the defendant
a lower sentence than the maximum available under the law. Yet consider
the consequence of this reality - when combined with Blakely's rule that a
judge cannot make findings that increase the length of a sentence.
Recall the hypothetical murder conviction discussed earlier. The jury
finds that the defendant intentionally acted to cause the victim's death.
The judge may now impose a twenty-year sentence but may first consider the
following mitigating fact questions: Was the defendant a particularly kind
person prior to committing this offense?; Is the defendant safe to be
around other people?; and Did the defendant do what he could in committing
the murder to avoid causing prolonged suffering to his victim? The statute
can then permit (or require) the judge to lower the sentence of twenty
years by five years for each affirmative answer to any of these questions.
The result is the same as it would be if the conviction carried a base
sentence of five years which the statute allowed the judge to enhance by
up to fifteen years on finding three analogous aggravating factors. Yet
the latter, and not the former, would be barred by the Court's decision in
When Circumvention Allows the Same Result, the Defendant Is Not Protected
Does this truly amount to any kind of meaningful protection for the
criminal defendant? The answer, for good or for ill, is no.
The requirement that the jury verdict authorize the entire length of
whatever sentence is imposed will likely motivate legislatures simply to
allow the judge to impose a maximum sentence on the basis of a guilty
verdict without making any additional findings of fact.
But won't the jury recoil from such severe sentences and refuse to
convict? It will not, because the jury will remain ignorant of the
sentences it "authorizes" in bringing back a guilty verdict. The jury's
authorization of a sentence - and accordingly, the guarantee that the
sentence not be oppressive - is thus entirely formalistic, as it has
always been (absent jury nullification).
The case of Blakely is therefore both extremely significant - in its
consequences for defendants and prosecutors who have participated in a
system that is now invalid - and largely irrelevant - in its future
significance to the states and the federal government.
As I have explained above, governments can simply do some careful
re-labeling and thereby undermine with formalism the assault on formalism
undertaken by the majority in Blakely. The right to jury trial, as
elaborated by our precedents, is thus hoisted by its own petard.
Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School
in Newark. Her earlier columns, including columns on criminal law and
procedure issues, may be found in the archive of her work on this site.
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