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Future of American Sentencing: A National Roundtable on Blakely

Publication Date: 
October 12, 2004
Stanford Law School

STANFORD--Aspects of the federal sentencing guidelines will likely be deemed unconstitutional by the U.S. Supreme Court and may have to be revised by Congress, a panel of the nation’s leading criminal justice experts predicted on Friday at a symposium marking the launch of the new Stanford Center for Criminal Justice.

Stanford Law School hosted the nation’s foremost experts in sentencing law and policy to analyze the effect of a landmark Supreme Court ruling last June, Blakely v. Washington, which cast the 17-year old guidelines into doubt and brought uncertainty and--in the view of some--chaos to the federal criminal justice system.

The symposium, titled “The Future of American Sentencing: A National Roundtable on Blakely," came just days after the Supreme Court opened its new term with expedited hearings on two cases that would resolve the status of federal sentencing guidelines. In an very rare move, the Court responded to a request by the U.S. Justice Department to speed up the hearings on those cases—United States v. Booker and United States v. Fanfan; a ruling is expected to be handed down well before the Court’s July deadline.

“For better or for worse, the Supreme Court is reviewing the constitutionality of the federal guidelines. The guidelines themselves have always been highly controversial as a matter of sentencing policy, but when they were devised, they drew on the thoughtful views of scholars, judges, and others, and aimed at non-political goals such as greater uniformity and transparency in sentencing. A lot of people are now concerned that if the Court tosses Congress the task of writing sentencing rules from scratch, political grandstanding may be the main motivation for whatever Congress does,” said Robert Weisberg, Edwin E. Huddleson, Jr. Professor of Law and director of the new Stanford Center for Criminal Justice.

In the Blakely decision, the Court struck down as unconstitutional part of the sentencing system used by the state of Washington and, in doing so, issued a dramatic new reading of the Sixth Amendment right to jury trial. The ruling indicated that the state of Washington--and by extension other states and the federal government--may not send a person to serve a greater prison sentence than would have been authorized under the facts found by a jury beyond a reasonable doubt, or conceded by a guilty plea. Federal guidelines currently permit judges to add years to a sentence without jury involvement, as do some other state sentencing systems.

“Even though the Blakely ruling was about a state statutory sentencing system, the effect will be much greater on the federal guidelines,” Weisberg explained. “Because state crimes are simpler than federal crimes, it’s easier to adapt the Blakely ruling to state sentencing systems,” he said. “Federal law has vague statutes and extremely complicated guidelines.”

What’s more, Weisberg said, state legislatures are likely to be more thoughtful in devising new sentencing legislation than Congress. Because state prisons represent a greater percentage of a state’s budget than the federal prison system represents in the federal budget, state politicians are more likely to be sensitive to the budgetary effects of any increased sentences. As a result, “these days state legislatures are often more rational in how they allocate decisions between judges and juries.”

Among the symposium panelists were the two principal attorneys in the Blakely case, Jeffrey Fisher, counsel for defendant, and Michael Dreeben, a U.S. deputy solicitor general who has represented the government in the Blakely and post-Blakely litigation.

Sitting side by side, instead of at opposing podiums, Fisher and Dreeben compared notes on the consequences of their work.

“On the surface, Blakely is about assigning determination of sentence to a judge, but it’s not about that at all,” said Dreeben. “It’s not aimed at protecting jury trial either. It’s about Justice Scalia’s view of judging as opposed to judges interpreting the Constitution. He’s saying ‘stop me before I annihilate the jury and give my lower court colleagues the power to do the same.'”

Introduced as “the man who gave us Blakely,” Fisher said, "I won because I gave the Court a clear test, and the other side had difficulty giving the Court a test that would restrain egregious violations of the jury trial right,” he said punctuating the need for a clear and easily applicable set of criteria.

One panelist lamented the costs of a Supreme Court ruling striking down the guidelines. Because the current guidelines represent a layer of administrative law on top of statutes enacted by Congress, they have benefited from “increased expertise... from legal scholars who have shed light on criminal justice,” said panelist and Stanford Law School alumnus Jonathan Wroblewski, counsel with the United States Department of Justice, who attended the Booker and Fanfan arguments in the Supreme Court earlier in the week.

“There’s a difference between stealing a little, stealing a lot, and stealing a real lot,” said Wroblewski. But,” he said, “the whole federal criminal code is not written that way” and that’s why the guidelines are so important.

“If sentencing guidelines are punted back to Congress, both the Congress and the presidential administration—whoever’s in power—will require severity,” he warned.

By the close of symposium, many possible scenarios emerged. The long list included these:

If the Supreme Court declares it unconstitutional for judges to issue sentences based on their findings of the facts in a case, the guidelines will fall, and the system could revert to old-fashioned indeterminate sentencing, where convicted offenders may receive anything between the statutory minimum and maximum. And one secondary effect of that scenario, of which many of the panelists warned, would be Congressional action to drastically increase mandatory minimum sentences.

On the other hand, the guidelines might remain, but solely as “advisory rules,” in which case it is uncertain whether judges will then follow them faithfully enough to ensure the kind of uniformity that the mandatory guidelines were aimed at.

Under another scenario, the Court may consider it within its power to judicially modify the guidelines and clearly identify certain sentencing factors that must be found by a jury. As panelists noted, such a change may greatly complicate the task of prosecutors in fashioning indictments, and for judges and lawyers in conducting jury trials on matters not originally thought of as within the jury’s province.

The Stanford Center for Criminal Justice aims to integrate research, public events, and clinical education in the field of criminal law.