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Letter to the editor

A welcome judicial mess

By ROBYN E. BLUMNER
Published July 25, 2004

U.S. Supreme Court Justice Anthony Kennedy was as blunt as a justice gets. When speaking on criminal justice issues to a meeting of the American Bar Association last summer, Kennedy called mandatory minimum sentences "unwise and unjust" and intoned that federal sentencing guidelines need to be "revised downward."

Kennedy's point was that America's addiction to severe punishment was to its own detriment. He compared our nation to those of Western Europe: Italy and France incarcerate only about 1 in every 1,000 people while in our country the rate is 1 in every 143, or 2.1-million people. The conservative Reagan appointee beseeched the legal profession to mobilize against what he saw as the misuse of public resources and the throwing away of so many souls.

Who could have known that less than a year later a case would come along that would shake up the criminal justice system in a way that made reform not only possible but likely?

The case of Blakely vs. Washington, decided by the U.S. Supreme Court in June, has thrown prosecutors and judges into a tizzy. The case suggests that the federal sentencing guidelines as well as those in at least 10 states are no longer constitutionally valid.

This may be back-to-the-drawing-board time for our criminal justice system; and it is an opportunity to heed Kennedy's advice.

In Blakely, the court said that the state of Washington's sentencing guidelines violated the Sixth Amendment right of defendants to a jury trial. The reason is that a judge, rather than a jury, is allowed to consider various "aggravating factors" that could sharply increase a sentence beyond the ranges established by the guidelines for a particular offense.

Although the majority opinion, written by Justice Antonin Scalia, said specifically that the court expresses "no opinion" on the federal guidelines, they are nearly identical to those operating in Washington and the smart money says they are going down as well. (In 1998, Florida removed the maximums on its sentencing guideline ranges and as a result will not be affected to any real degree by Blakely.)

Congress established sentencing guidelines in the federal system 20 years ago in the Sentencing Reform Act of 1984. The purpose was to limit the discretion of judges and bring uniformity to sentences throughout the nation. The term "guidelines" suggests that federal judges may choose to follow them or not. In fact, the sentence ranges are dictates that come close to having the force of law. Judges who have departed from the sentencing ranges were often reversed on appeal.

The guidelines have brought a measure of certitude and consistency to sentencing but they also have limited the ability of judges to offer mercy when warranted, or adjust sentences so as to avoid an injustice. Should the girlfriend of a drug dealer really get more prison time than her boyfriend because she has no one to rat on?

Another endemic problem has been the one that Blakely addressed. Prosecutors would ask judges during sentencing to consider all sorts of "aggravating factors," such as the amount of drugs a defendant had or whether there was deliberate cruelty - factors that were not proven beyond a reasonable doubt before a jury. The result was defendants moving into higher sentencing ranges, sometimes many years higher. An aggravating factor like a past conviction has always been a legitimate reason to impose stiffer punishment, but prosecutors in the federal system would routinely bring up past arrests and even acquittals as bases for more time.

The fallout from Blakely has been much hair pulling and gnashing of teeth. The demise of guidelines was described by one federal appellate judge as leading to "bedlam," a situation predicted by Justice Sandra Day O'Connor in her frantic dissent.

But the prognosis is overblown. Yes, there is going to be some messiness as the thousands of cases tried under the old system are reassessed. Yet, already prosecutors are beginning to adjust, adding elements of the crime to the indictment that before would have shown up only at sentencing. And plea bargaining procedures - which affect 97 percent of federal cases and more than 90 percent of state cases - are being modified. The Justice Department has already promulgated detailed procedural guidance for prosecutors in light of Blakely.

These are changes for the good, adding a soupcon of extra due process and leverage to the defense. As Marc Mauer, assistant director of the Sentencing Project noted, "You can waive your Blakely rights but that's not something that will be given up lightly."

So what does the future hold? Not surprising, Congress is already in gear. The Senate Judiciary Committee held hearings earlier this month to discuss ideas that include transforming the guidelines into a truly voluntary system (something seriously worth considering) or wiping away the range maximums (a bad move that would only increase the harshness of sentences without providing the flexibility for more leniency). Another intriguing prospect is to adopt the Kansas model, where the jury first decides guilt and then considers sentencing enhancements, similar to the two phases of a death penalty case. At least on paper, this approach has much to commend it, returning to the jury much of its traditional role as the trier of facts.

As Congress stews, the courts are quickly making their own judgments. Federal circuits have now split, with the 7th U.S. Circuit Court of Appeals finding the federal sentencing guidelines unconstitutional and the 5th Circuit upholding them despite Blakely. The Justice Department has asked the U.S. Supreme Court to address the issue in expedited form as its first order of business, even before the start of its new term in October.

From my vantage there is little doubt that the federal guidelines are now unconstitutional. In reformulating the system, we can either take Justice Kennedy's advice and inject it with more reasoned compassion or we can return to the rigid harshness of the past. My plea is that nothing get done in any hurry. We have a chance now to consider what works and what doesn't work in our criminal justice system. Let's take it.

[Last modified July 24, 2004, 23:57:22]