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The Supreme Court is all but ringing the death knell of three decades of sentencing reform, and the future of guided judicial discretion is in grave doubt. Paradoxically, the results may be more mandatory sentencing in some states, more wide-open discretion in others, and more pressure to plea-bargain all around. Four years ago, in Apprendi v. New Jersey, the Supreme Court ruled 5-4 that any fact that raises a defendant’s statutory maximum sentence must be proved to a jury beyond a reasonable doubt. While Apprendi invalidated a number of convictions, it did not affect most of them because defendants usually get sentences below the statutory maximum. A week and a half ago, however, the Court greatly expanded Apprendi‘s bite in Blakely v. Washington. Under Washington state law, kidnapping carries a statutory maximum penalty of 10 years’ imprisonment. State sentencing guidelines specified a presumptive sentence for kidnapping of 49 to 53 months’ imprisonment. The judge, however, departed upward and sentenced Ralph Blakely to 90 months on finding that he had been deliberately cruel to his victim. The Supreme Court reversed, holding that judges may not find facts that raise the sentencing guideline maximum, even if the sentence is below the statutory maximum. These facts must be submitted to a jury and proved beyond a reasonable doubt. The Court’s lineup in Blakely was the same unusual 5-4 split found in Apprendi. Normally conservative Justices Antonin Scalia and Clarence Thomas joined with liberal Justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg to strike down the sentence. Normally liberal Justice Stephen Breyer joined Chief Justice William Rehnquist and Justices Sandra Day O’Connor and Anthony Kennedy in dissent. The division reflected not political ideology, but an idealized vision of juries versus practicality and equal treatment. EXTENDING APPRENDI Writing for the majority, Justice Scalia read Apprendi broadly, as governing any facts that raise the sentence a judge could otherwise impose. He adopted this bright-line rule as the only way “to give intelligible content to the right of jury trial.” Otherwise, legislatures could simply relabel elements of crimes as sentencing factors, starting down a slippery slope of transferring jury power to sentencing judges. The opinion reflected Scalia’s penchant for history, formalism, and bright-line rules, as well as his concern for giving defendants fair notice. With a wide sentencing range of 10 to 40 years, “every burglar knows” he could get up to 40 years’ imprisonment, Scalia wrote. But if the presumptive sentence is 10 years plus up to 30 years for a gun, a defendant may have “no warning in either his indictment or plea” of the possible higher sentence. This notice argument was more persuasive in Apprendi than in Blakely. Defendants who plead are warned of the statutory maximum sentences and that sentencing guideline adjustments affect how close to the maximum they will get. Defense lawyers advise their clients of guidelines computations. Moreover, prosecutors can give notice in other ways, such as bills of particulars, without charging everything in indictments and proving it all to juries. The dissenters bemoaned “the havoc [ Blakely] is about to wreak.” As Justice O’Connor put it, “Over 20 years of sentencing reform are all but lost, and tens of thousands of criminal judgments are in jeopardy.” Her concern is not exaggerated. While the majority reserved judgment about the U.S. Sentencing Guidelines, Blakely‘s reasoning probably applies to them and up to 10 state guideline systems. Guideline enhancements based on drug quantity, dollars stolen, use of a gun, injury to victims, and role in the offense are all now suspect. If a guideline specifies any such enhancement, a jury must find it beyond a reasonable doubt. (Criminal history and recidivism enhancements are exceptions for now, though they are on shaky ground.) As the Blakely dissenters pointed out, sentencing guidelines have been valuable efforts to check arbitrariness, discrimination, and variation. While the federal guidelines have been criticized as too complex and rigid, many state guidelines (such as Minnesota’s) have succeeded and garnered broad support. Furthermore, sentencing commissions, legislatures, judges, practicing lawyers, and academics have refined these rules through an ongoing conversation. As Justice Kennedy’s dissent notes, Blakely shuts down this discourse. CONFUSION IN THE COURTS Almost immediately after Blakely was handed down, lower courts started grappling with how it applies to pending cases. So far, at least four federal district judges have found that Blakely invalidates the guidelines’ upward adjustments but leaves the rest intact. Thus, Ronald Shamblin, who manufactured and sold more than 2,000 grams of methamphetamine, would have received a life sentence before Apprendi and a 20-year sentence between Apprendi and Blakely. Because Shamblin had not specifically allocuted to the drug quantity, however, U.S. District Judge Joseph Goodwin of the Southern District of West Virginia treated the drug quantity as if it was at the lowest level the guidelines recognize (2 grams) and sentenced Shamblin to only one year. Severing upward adjustments from the rest of the guidelines, however, is artificial. In United States v. Croxford, U.S. District Judge Paul Cassell of the Central District of Utah rejected this piecemeal approach. He reasoned persuasively that upward adjustments are integral to the guidelines and that the judicial role is too complex to hand over to juries. Instead, Cassell struck down the federal sentencing guidelines as a whole. He nevertheless consulted them as nonbinding guidance and imposed a sentence only slightly below what the guidelines would have required. So far, at least one other federal district judge has agreed with Cassell’s analysis. Ultimately, this latter approach seems more likely to prevail. It would transform the guidelines from Procrustean rules into true guidelines. (This and other post- Blakely decisions are available at sentencing.typepad.com.) PLEADING AWAY BLAKELY What will sentencing look like after Blakely? Justice Scalia envisions trying sentencing enhancements before juries — either the jury that decided guilt or a separate sentencing jury. Trying enhancements before the first jury, however, could prejudice it on the issue of guilt, while bifurcating or empaneling a second jury would be costly and time-consuming. Moreover, most cases never make it to juries. Ninety-five percent of defendants plead guilty and waive their rights to jury trials. They used to be able to plead guilty to base offenses, receive acceptance-of-responsibility reductions for pleading guilty, but contest enhancements at sentencing. Now that these enhancements are elements, defendants must allocute to them as part of their pleas if they want to earn credit for pleading guilty. Their theoretical trial rights do them no good when they face overwhelming pressure to waive trial. Blakely did nothing to remove this guilty-plea problem. On the contrary, it acknowledged that defendants may freely waive their Apprendi/ Blakely rights or stipulate to facts and elements. Some defendants, those who could plausibly threaten to go to trial over enhancements, will benefit by bargaining away their rights in exchange for reduced sentences. But most defendants cannot plausibly threaten to go to trial and cannot risk losing credit for their pleas. To avoid cumbersome, time-consuming sentencing trials, prosecutors will likely force defendants to stipulate to enhancements in their plea agreements. By making defendants allocute to every possible enhancement fact and waive every Apprendi/ Blakely right explicitly at plea colloquies, prosecutors will thereby get around Blakely. LONG-TERM SOLUTIONS In the longer term, there are several possible reactions. The first is to redraft existing sentencing guidelines. Judges may not find facts that aggravate sentences, but they may still find facts that mitigate sentences. Legislatures and sentencing commissions could draft around this arbitrary line. For example, if the original penalty was 10 years plus two for having a gun, the revised penalty could be 12 years minus two for not having a gun. Justice Scalia’s formalistic opinion permits this evasion, although the justices might balk if they confronted it head-on. A less gimmicky variation — say, raising statutory and guideline maximums for all violent offenses to life while leaving minimums in place — might work. Legislatures would abdicate their efforts to constrain judicial harshness while still regulating judicial leniency. Hanging judges would still introduce arbitrariness and disparity, but soft judges would not. The second possibility is a return to indeterminate sentencing. If the sentence for kidnapping is zero to 20 years, then judges could sentence anywhere within that range. This approach would reintroduce the dangers of arbitrariness, discrimination, and variation that fueled determinate-sentencing reforms. It would also give defendants less notice, warning them only of the theoretical 20-year maximum without any guidance about where they will likely fall within the range. In other words, legislatures might delegate to judges unfettered discretion, so long as they do not guide or constrain how the judges will exercise that discretion. The rule is the reverse of a nondelegation doctrine; it is more like a must-delegate doctrine. The upshot would be less predictability, less coherence, and less uniformity in sentencing. The third and most troubling possibility is a proliferation of harsher penalties. As last year’s Protect Act shows, Congress is frustrated with soft-on-crime judges and will balk at returning sentencing discretion to them. Deprived of the guidelines scalpel, Congress will turn to the mandatory minimum sledgehammer. A pending drug bill, introduced by Rep. F. James Sensenbrenner Jr. (R-Wis.) before Blakely, marks another step along this road by threatening more harsh mandatory minimums for drug crimes. Mandatory penalties give prosecutors tools with which to tie judges’ hands without turning discretion over to juries. But broad mandatory penalties are crude and poorly calibrated to blameworthiness. It is little consolation that they provide clear notice. These increased mandatory penalties will also ratchet up pressure to plead guilty. Historically, the more cumbersome trials have become, the more defendants have pleaded guilty. The irony is that Blakely, a supposedly pro-jury decision, may mean even fewer juries. In other words, courtroom actors will pressure defendants to give up their newly won rights, because exercising all those rights would make the system grind to a halt. Legislatures will jack up penalties and trust prosecutors to bargain them away in exchange for trial rights. The winners, in short, are the prosecutors. They will have more bargaining chips, and judges will have even less leverage to check them. The clearest losers are the federal and state sentencing commissions. The U.S. Sentencing Commission had already taken a beating in the Protect Act, in which Congress bypassed the commission’s expertise to amend the sentencing guidelines directly. The pending Sensenbrenner bill is another effort to bypass the commission. Evidently the commission has lost Congress’ trust, and now the Supreme Court has shut it out of the dialogue about sentencing rules. Sentencing reform is not quite dead. Voluntary guidelines, or guidelines reworded to include mitigating facts, may still pass muster. But it is in critical condition. Stephanos Bibas is an associate professor at the University of Iowa College of Law and a former federal prosecutor. He can be reached at [email protected].

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