Sunday, June 27, 2004

The New York Times on Blakely

Sunday's New York Times ran an article discussing the possible impact of the Blakely decision. The assessment? "Legal Scholars were virtually unanimous in agreeing with Justice O'Connor that the decision guts the federal sentencing guidelines." (To demonstrate this unanimity, the Times quotes one scholar.)

Scalia's had it in for the guidelines since Mistretta, so I don't doubt that he and the other Guidelines-haters in the Supreme Court are looking for ways to undermine the system. Considering the turmoil that may be caused by this decision (in both practical and constitutional terms), my hope is that Congress will see the handwriting on the wall and undo the Guidelines themselves, well before the Court takes a fresh look at their constitutionality. The Guidelines desparately need reform; it would be great to see Congress act constructively on the heels of the decision.

In light of Ashcroft's recent memos to prosecutors (one making sure that they keep an eye on judges who seek downward departures; another requesting that they seek maximum penalties and eschew plea bargains), I wonder how he'll react to the Blakely decision. If I had to guess, he'll either say nothing and hope that prosecutors ignore the decision; or he'll actively encourage prosecutors to ignore the decision. Call me cynical.

Incidentally, the Court finds its authority for the main holding of the opinion--that “[o]ther 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”--in Apprendi v. New Jersey. It was in part an interpretation of Apprendi that led the Chief Judge of the District Court of Massachusetts to declare last week that the Guidelines are unconstitutional.

For more news on Blakely, click here.


Blogger Mark said...

Isn't it odd that Blakely, a case where the Court, in a way, said the judge had too much discretion to lengthen a sentence (i.e., the Court said the fact used by the judge had to found to be true by a jury) might end up signaling the death of the Guidelines, a system that lots of people have said takes away too much discretion from judges? If the Guidelines were to be wiped out, and the old system of judges simply making off-the-cuff sentencing decisions were reinstated, judges would still be making sentencing decisions based on facts not found to be true by the's just that the judges would be sentencing within statutory bounds and would not "technically" be relying on unproven facts in order to increase a sentence. Is this odd, or am I misunderstanding something?

June 28, 2004 at 5:56 AM  
Blogger Chris said...

To Mark's comment -- I agree, though I wonder if Scalia's opinion affects indeterminate sentencing as well. His opinion does not seem to rest on a determinate sentencing guideline for its reasoning. The difficulty that you note, however, may be a practical one: indeterminate sentencing schemes are based, I suppose, on equity rather that law (the judge's "whim" v. a legal guideline), so it may be impossible as a practical matter to apply Scalia's reasoning to a indeterminate scheme. Or, perhaps, such impracticality might mean that an indeterminate scheme cannot pass constitutional muster, and instead we must move to something closer to a "charge offense" system. That is, if this guts the sentencing guidelines because it makes it nearly impossible to bring in such things as "relevant conduct," then Congress may be forced to take out these "real offense" elements in order to make the Guidelines more constitutionally sound.

June 28, 2004 at 7:59 AM  
Blogger Mark said...

Agreed, Chris. To your final possibility I can only say, "yikes." Even the framers of the Guidelines saw the wisdom in incorporating some "real offense" elements. If incorporating those is unconstitutional, might it be fairer to have the old, completely indeterminate system?

June 29, 2004 at 5:19 AM  

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