Blakely Decision

The Court, as usual, handed down several decisions in the area of criminal procedure, but the bombshell case that sent prosecutors and judges running involved not a high-profile capital punishment appeal, but a relatively bland case on sentencing.

Ralph Howard Blakely, Jr., had pled guilty to kidnapping his former wife, Yolanda, in Washington state in 1998, in a vain effort to get her to remarry him. Under state guidelines, the circumstances of the crime called for a maximum sentence of four years and five months.  The judge, however, sentenced Blakely to seven years because during the kidnapping he had acted with exceptional cruelty.  Mrs. Blakely had been bound with duct tape, forced into a wooden box in the back of her ex-husband's pickup truck and then driven around, and her young son had witnessed much of this abuse. Following state law, the judge held a special sentencing hearing, at which the standard of proof was the "preponderance of the evidence" rather than the "beyond a reasonable doubt" needed to establish guilt in the first part of the trial.

Blakely appealed, arguing that only a jury could make the extra sentencing decision, and that it had to do so under the beyond a reasonable doubt standard. The Washington Court of Appeals upheld the state law, but a bitterly divided Supreme Court, by a 5-4 decision in Blakely v. Washington (2004), overturned the state court, and ruled that in a felony trial any facts that would result in a sentence above the prescribed range must be submitted to a jury using the beyond a reasonable doubt standard.  As Justice Scalia wrote for the majority, "The Framers would not have thought it too much to demand that, before depriving a man of more than three years of his liberty, the state should suffer the modest inconvenience" of submitting its accusation to a jury.

The ruling followed the logic of the Court's decision in Apprendi v. New Jersey (2002), in which the justices struck down state laws that permitted judges rather than juries to decide between life imprisonment and the death penalty in capital cases.  That same principle would now apply to felony cases as well. Scalia was joined by Justices Stevens, Souter, Thomas, and Ginsburg, while the Chief Justice and Justices Kennedy and Breyer joined the dissent by Justice O'Connor, who presciently predicted what the results of the decision would be.

"The consequences of today's decision will be as far-reaching as they are disturbing," she declared, noting that the federal government as well as many states had sentencing guidelines similar to that of Washington.  Moreover, the full facts of any particular crime may not always be known to a jury. Facts that may be important in mitigating or enhancing a sentence may not be necessary for proof of whether the defendant committed the crime. Did the Court's ruling, she asked, mean that in every felony trial the jury would have to engage in a separate deliberation to sentence a defendant once it had returned a guilty verdict, a procedure at present not followed except in death-penalty cases? "The Court," she charged, "ignores the havoc it is about to wreak on trial courts across the country." A few weeks later, Justice O'Connor, speaking to the 9th Circuit's annual conference, said the case "looks like a No. 10 earthquake to me," adding that she was "disgusted in how we dealt with it."

On the same day, the Court handed down its decisions in Schriro v. Summerlin and Mills v. Maryland holding that the decision in Apprendi and another 2002 case, Ring v. Arizona, which dealt with sentencing in capital cases, did not apply retroactively.  But O'Connor's prescience prove remarkably accurate, for within days after the Blakely decision came down, prosecutors and courts were scrambling to determine what the decision meant in terms of indictment, standards of proof for various elements of a crime, how much had to be laid out to a grand jury, to the petit jury, at the guilt phase of the trial or during the sentencing part, in the thousands of cases awaiting trial in both state and federal courts.

The California Supreme Court unanimously agreed to take a case to determine whether the high court's decision would affect sentencing in the country's largest court system. The Court of Appeals for the Ninth Circuit ordered a district court to re-examine a criminal sentence. The Second Circuit Court of Appeals asked the justices to provide guidance, by certifying to the high court the question of just what Blakely meant in terms of judges making findings of fact that could increase a defendant's sentence. The Supreme Court has accepted such certification from federal courts of appeal only four times since 1946, the last in a case questioning the president's power to execute an international settlement agreement (Iran National Airlines Corp. v. Marschalk Co., 453 U.S. 919 (1981)).

Gary Stein, who served as chief appellate attorney for the U.S. Attorney for the Southern District of New York, said the Court of Appeals request "has sent a loud and clear message to the Supreme Court -- that the intelligent functioning of our criminal justice system" depends on a rapid explanation of what Blakely means. The confusion did in fact exist.  Within three weeks after the high court handed down the decision, four federal district judges interpreted the new rule in four different ways, and that was just in Utah. By mid-July the Justice Department had decided that it needed a clearer rule by which its attorney could prosecute, and had chosen two cases that the solicitor general would take to the justices asking for a rapid decision, since Blakely for all practical purposes had demolished the constitutionality of federal sentencing guidelines. To add its voice to the cry for clarification, the U.S. Senate passed a concurrent resolution urging the justices to act "expeditiously" to end inconsistency in the sentencing system.

In late July the Justice Department asked the high court to grant certiorari in two cases directly affected by the Blakely ruling, United States v. Booker, out of the Seventh Circuit Court of Appeals, and United States v. Fanfan, from a district court in Maine. The Court responded by immediately directly lawyers for the defendants to file their answers to the petitions within a week On August 2, the Court announced expedited review of the two cases, and said it would hear argument on the first day of the Term, the first Monday in October.

It is likely that the Court, in addition to expediting the hearing, will also ensure that its decision comes out as soon as possible, in order to end the confusion now reigning in both the federal and state court systems.  While cases in their early stages can be cured of a Blakely defect by adding information to a revised grand jury indictment, cases that are already in trial or are at the sentencing stage are another story.  It is very likely that many judges will delay the sentencing phase until after the Court hands down its decision, probably in November, but doing so could add to the backlog already jamming the system. If the Court insists on its constitutional stance, Congress will have to respond legislatively, passing new sentencing guidelines that conform to the decision.

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