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In a 5-4 ruling that Justice Sandra Day O’Connor said would have a “disastrous” impact on state and federal sentencing, the Supreme Court on Thursday ruled that any aggravating facts that increase a defendant’s sentence must be proven to a jury, not decided by a judge. The ruling in Blakely v. Washington, No. 02-1632, underscores and strengthens the Court’s 2000 ruling in Apprendi v. New Jersey, and could expand its scope to affect the federal sentencing guidelines. The ruling is sure to accelerate the growing debate over the wisdom of sentencing reforms enacted over the last two decades. Apprendi struck down a New Jersey hate crime law that allowed judges to increase sentences in certain crimes to 20 years — double the usual statutory maximum. But Thursday’s ruling in Blakely said the Apprendi rule also applies to sentences that are above sentencing guidelines but below statutory maximums. “The decision casts significant doubt on the federal guidelines,” said Seattle lawyer Jeffrey Fisher of Davis Wright Tremaine, who won the case for defendant Ralph Blakely Jr. The Court on Thursday also issued other important sentencing rulings in two capital cases. In Schriro v. Summerlin, No. 03-526, the Court said the 2002 ruling Ring v. Arizona, which also extended Apprendi, does not apply retroactively to hundreds of death sentences that were already final when Ring was decided. In Beard v. Banks, No. 02-1603, the Court said that a 1988 ruling in Mills v. Maryland, another sentencing precedent that helped defendants, did not apply retroactively. The Blakely ruling may have the most sweeping impact, at least in dissenting Justice O’Connor’s view. She said the decision might spell the end of 20 years of sentencing reform by forcing states and Congress to scrap their sentencing guidelines. And if sentencing guidelines are abandoned, she warned, the system will end up with more judicial discretion and less uniformity in sentencing — the very problems that sentencing guidelines were meant to address. “The Court ignores the havoc it is about to wreak on the trial courts across the country,” wrote O’Connor, who read parts of her dissent from the bench. O’Connor said an “untold number” of sentences issued by state and federal judges since the Apprendi ruling could be open to attack in the wake of Thursday’s rulings. “What I have feared most has now come to pass,” O’Connor lamented. “Over 20 years of sentencing reform are all but lost, and tens of thousands of criminal judgments are in jeopardy.” In his majority opinion, Justice Antonin Scalia launched a broad attack on sentencing guidelines, although he said in a footnote that federal sentencing guidelines were not before the Court and were, thus, not ruled on. Scalia said the Court had a duty to protect the Sixth Amendment right to a jury trial from excessive government regulation. “The very reason the framers put a jury trial guarantee in the Constitution is that they were unwilling to trust government to mark out the role of the jury,” Scalia wrote. In the case before the Court, Blakely pleaded guilty to the 1998 kidnapping of his estranged wife, Yolanda. Under the plea agreement and under state sentencing guidelines, he was subject to a sentence within the “standard range” of 49 to 53 months. But the law also allowed the judge to add prison time, up to a maximum of 10 years, for aggravating factors. The judge sentenced Blakely to 90 months in jail — still below the 10-year maximum — because the crime showed “deliberate cruelty.” Blakely objected, but after a three-day hearing, the judge affirmed the extra sentence. State appeals courts upheld the sentence. Before the Supreme Court, the state of Washington asserted that the 90-month sentence did not violate Apprendi because it was still below the 10-year maximum for felonies in the same category. But Scalia said that was irrelevant, because in Blakely’s case “the judge… could not have imposed the exceptional 90-month sentence solely on the basis of the facts admitted in the guilty plea.” Scalia added, “It remains the case that the jury’s verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact.” The ruling may mean that any aggravating facts that could later lead to an additional sentence beyond guideline ranges will have to be stated in the indictment and proved to the jury In her dissent, O’Connor said the federal sentencing guideline scheme, as well as the sentencing systems in Alaska, Arkansas, Florida, Kansas, Michigan, Minnesota, North Carolina, Oregon and Pennsylvania have characteristics similar to those struck down in Blakely. But she said the impact could even be wider: “If the Washington scheme does not comport with the Constitution, it is hard to imagine a guidelines scheme that would.” Chief Justice William Rehnquist and Justices Stephen Breyer and Anthony Kennedy joined most of O’Connor’s dissent. In a separate dissent, Breyer also warned that the Court’s ruling is “fraught with consequences that threaten the fairness of our traditional criminal justice system.” Kennedy, also writing separately, lamented that the ruling “shuts down” legislative alternatives and will diminish the dialogue between the judicial and legislative branches over sentencing. The ruling comes amid ever-greater scrutiny of sentencing reforms and practices. Just a day before the ruling, Justice Anthony Kennedy traveled to the D.C. offices of the American Bar Association to accept a report by an ABA commission that was sharply critical of criminal sentencing. Kennedy has criticized mandatory minimum sentences and excessive reliance on incarceration in the past. “For more than 20 years, we have gotten tougher on crime,” ABA President Dennis Archer said in presenting the report. “Now we need to get smarter. We can no longer sit by as more and more people — particularly in minority communities — are sent away for longer and longer periods of time while we make it more and more difficult for them to return to society after they serve their time. The system is broken. We need to fix it.” On Monday, Boston U.S. District Judge William Young ruled that the federal sentencing system was unconstitutional because it gave prosecutors too much power to bargain on the facts and charges that they bring against defendants.

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