Model Penal Code: Sentencing



Model Penal Code: Sentencing

Report to the Council(

October 7, 2004

Kevin R. Reitz, Reporter

The Supreme Court’s 5-4 decision in Blakely v. Washington, 124 S.Ct. 2531 (June 24, 2004), has introduced a new element of constitutional uncertainty into the project of sentencing reform in as many as twenty states, the federal system, and the Model Penal Code: Sentencing (“MPCS”) revision. The Court’s expedited consideration of two related cases, United States v. Booker, Case No. 04-104, and United States v. Fanfan, Case No. 04-105 (oral arguments in both were heard on October 4), may resolve some areas of widespread confusion that have followed from Blakely. Some observers have predicted that the Court will place sharp limits on Blakely’s reach.[1] It is also possible, however, that Blakely’s underlying reasoning—and forceful dicta in Justice Scalia’s majority opinion—will be extended in future cases to its full literal application. The landscape of American sentencing law, which was remarkably free from federal constitutional regulation throughout the twentieth century,[2] may be destabilized for some time to come by an evolving new constitutional jurisprudence.

Until the June 24 Blakely ruling, the proposed drafting in MPCS, Preliminary Draft No. 3 (May 28, 2004) (circulated now for informational purposes only) was scheduled to come before the Council in October 2004 as “Council Draft No. 1,” with minor emendations and suitable Reporter’s Notes. Shortly after Blakely was handed down, the Institute’s Director, Deputy Directors, and the Reporter agreed that this schedule could not be maintained. Instead, the coming months will be used to assess the various responses of state and federal governments to Blakely’s novel requirements,[3] to await and digest the Court’s further pronouncements in Booker and Fanfan, and to evaluate the need for changes—major or minor—in proposed MPCS drafting.

In advance of these labors, this report will outline the Court’s holding and reasoning in Blakely, the uncertainties the decision has created, and the range of possible implications for the MPCS project. The report assumes that the reader has a basic familiarity with MPCS proposals to date, including the contents of MPCS, Report (April 11, 2003) and Preliminary Draft No. 3.

Blakely’s Holding and Uncertainties of Application

Blakely sustained a Sixth Amendment challenge to the procedure under the Washington State sentencing guidelines for imposition of an aggravated penalty above the “standard” or “presumptive” sentence range set forth in the state’s sentencing guidelines. The Court held that the defendant had the right to jury determination, beyond a reasonable doubt, of facts supporting the aggravated sentence.

Ralph Howard Blakely plead guilty to the offense of second degree kidnapping, which, as a class B felony under Washington law, carried a statutory maximum prison sentence of ten years.[4] Effective in 1984, the state had adopted sentencing guidelines to give structure to the exercise of judicial sentencing discretion within the boundaries of applicable statutory maxima and minima. The Washington guidelines were promulgated by the Washington State Sentencing Commission, but gained legal effect through enactment as statutes by the state legislature.

Given Blakely’s offense of conviction, his record of prior criminal convictions, and the fact that he had admitted using a firearm during the crime, the sentencing guidelines set forth a “standard” sentencing range of 49-53 months in prison (subject to modest good-time reductions under Washington law, but no possibility of early parole release).

The Washington guidelines were not designed to bind trial courts restrictively to narrow presumptive ranges. Prior to Blakely, whenever a trial judge found that “substantial and compelling reasons” existed in an individual case so that the standard sentence would not best serve the purposes of sentencing, the judge was permitted to depart from the guideline range and pronounce an aggravated penalty (up to the statutory maximum) or a mitigated penalty (down to the statutory minimum, if any). Departures could be supported by aggravating or mitigating factors enumerated in the Washington sentencing guidelines, or judge-made factors fashioned in individual cases in light of the statutory purposes of sentencing. A departure could be initiated by motion of either party, or on the court’s own motion with notice to the parties. The facts underlying departures were determined by judges at sentencing proceedings under the preponderance of the evidence standard. All departures required trial courts to make written findings of fact and conclusions of law, and were subject to appeal.[5]

Blakely received an aggravated departure sentence supported by the trial judge’s findings that Blakely had committed acts of “domestic violence with deliberate cruelty” in the commission of the kidnapping offense.[6] Among other acts, Blakely, who had kidnapped his estranged wife, threatened the life of his wife and their thirteen-year-old son, attempted to force her to withdraw divorce proceedings she had initiated, bound her in duct tape and sealed her in a coffin-like wooden box for several hours, drove her from Washington to Montana, and forced their son to accompany them on part of the journey with threats that the victim would be murdered if the son failed to comply.

In light of these circumstances, the trial court imposed an aggravated sentence of 90 months—37 months above the upper border of the “standard” guideline range but 30 months below the statutory maximum penalty of 120 months. The Washington Court of Appeals affirmed, holding that the trial court’s findings of fact were not clearly erroneous, the reasons cited for departure were sufficient as a matter of law, and the trial court did not abuse its discretion in fixing the severity of the departure sentence.[7]

The United States Supreme Court granted certiorari to consider whether the Sixth Amendment right to jury trial mandated that findings of facts made legal prerequisites to an aggravated sentence under Washington law—that is, a sentence above the presumptive guideline range—must be determined by a jury and proven beyond a reasonable doubt. Prior Supreme Court cases, beginning with Apprendi v. New Jersey,[8] had held that:

Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.[9]

The Washington Court of Appeals had rejected this Apprendi challenge on the theory that Blakely’s aggravated sentence did not exceed the ten-year statutory maximum for second degree kidnapping.[10] In so doing, the court ruled consistently with precedent from its own state supreme court,[11] every federal circuit,[12] and every state appellate bench to have considered the issue except one.[13]

The U.S. Supreme Court reversed on the theory that the standard penalty range under the Washington guidelines (49 to 53 months) itself established a “statutory maximum” punishment of 53 months—far short of the ten-year statutory maximum denoted for the offense of second-degree kidnapping in the Washington criminal code. Here was the huge surprise in Blakely: that a guideline presumption nested within broader statutory parameters should itself be understood as a statutory maximum. Indeed, the Supreme Court, in a number of prior rulings concerning the federal sentencing guidelines, had consistently characterized presumptive guideline ranges as falling within the outer boundaries of statutory maximum penalties.[14]

Most observers did not foresee the new constitutional definition of “statutory maximum” the Blakely Court would pronounce in the following passage:

In this case petitioner was sentenced to more than three years above the 53-month statutory maximum of the standard range because he had acted with “deliberate cruelty.” … The State nevertheless contends that there was no Apprendi violation because the relevant “statutory maximum” is not 53 months, but the 10-year maximum for class B felonies in [Wash. Rev. Code] § 9A.20.021(1)(b). … Our precedents make clear, however, that the “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. … In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional facts. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts “which the law makes essential to the punishment.[15]

The Court stated elsewhere that “every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment”[16] and that “‘every fact which is legally essential to the punishment’ must be charged in the indictment and proved to a jury.”[17]

The underlying rationale of the Apprendi-Blakely line of cases is the Court’s historical conclusion that the Framers intended the trial jury to exercise “control” over judges’ sentencing authority or, using more contemporary language, that the jury should act as a “circuitbreaker” in the governmental process leading to criminal punishment:

Our commitment to Apprendi in this context reflects not just respect for longstanding precedent, but the need to give intelligible content to the right of jury trial. That right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary. … Apprendi carries out this design by ensuring that the judge’s authority to sentence derives wholly from the jury’s verdict. Without that restriction, the jury would not exercise the control that the Framers intended.

… The jury could not function as circuitbreaker in the State’s machinery of justice if it were relegated to making a determination that the defendant at some point did something wrong, a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.[18]

Because the Blakely Court’s new conception of a “statutory maximum” penalty is not tied to colloquial meaning, legislative intent, or traditional usage of the term, and because the Court’s underlying theory of jury-as-privileged-factfinder in punishment determinations is also a constitutional novelty, there has been considerable post-Blakely confusion over when and how the new jury trial rule applies. For example, the following important questions remain unanswered:

● The Washington sentencing guidelines were adopted as statutes rather than administrative regulations or court rules, as in some other jurisdictions. Does Blakely’s “statutory maximum” rule apply to penalty presumptions that are not statutory?

● Does Blakely apply to state laws that create a presumption in favor of probation (or other community sanction) over incarceration? Must factfinding prerequisite to a confinement sanction—or the revocation of a community penalty—now be performed by juries?

● Does Blakely apply to legal presumptions in favor of concurrent rather than consecutive sentences in multiple-count cases?

● When appellate courts, as opposed to legislatures or sentencing commissions, create “benchmarks” for sentencing, or review sentences for reasonableness or proportionality in light of the factual record, do the appellate courts in effect create legal factfinding requirements subject to Blakely’s jury trial rule?

● Many jurisdictions allow the transfer of juvenile offenders to the adult criminal courts upon certain factual conditions. Must the factfinding attending transfer decisions, which expose defendants to increased maximum penalties, now be performed by juries?

● Does the mere requirement that trail courts state the reasons for their sentencing decisions set into place factfinding requirements that implicate the jury trial right?

● If factfinding at sentencing is legally required to establish only the date of an offender’s first parole eligibility, but not the maximum incarceration term if parole release is withheld, does Blakely apply? If state law presumes that prisoners will be released at a certain time in the absence of adverse findings, does Blakely apply?

● Are sentencing factors subject to the Blakely rule now to be understood as full-blown elements of offenses? If so, does each Blakely factor create a new grading distinction in the criminal code? What procedural requirements beyond the right to jury trial and the reasonable doubt standard would follow from such a conclusion?

Blakely’s import becomes even more uncertain when assessed in light of the Court’s closely-related decisions in the sentencing field, some of which sit uncomfortably with the jury-as-privileged-decisionmaker rationale of Blakely. In 2002 (in a post-Apprendi ruling), the Court held that judicial factfinding at sentencing was permissible even when it is the legal trigger for a mandatory minimum penalty more severe than the otherwise applicable minimum sentence. Harris v. United States, 536 U.S. 545 (2002), reaffirming McMillan v. Pennsylvania, 477 U.S. 79 (1986). Thus, judicial factfinding at sentencing that increases the lower end of the penalty range is allowable, but not so when it extends the upper edge of the range. The jury’s role as “circuitbreaker” lacks constitutional significance in the context of mandatory minimum sentence enhancements.

Harris was a 5-4 decision. The fifth vote, cast by Justice Breyer, was accompanied by a concurring opinion that indicated he might change his mind in the future.[19] Most Justices saw a logical inconsistency between Harris and Apprendi. Indeed, all of the Justices in the Blakely majority were strong dissenters in Harris—with the lone exception of Justice Scalia. Justice Scalia is therefore the only member of the Court who believes simultaneously that the Sixth Amendment is concerned with increases in maximum but not minimum penalties. For now, however, Harris—and the lonely “Scalia view” of the jury trial guarantee—remains the law. Unless the Court takes the unusual step of reversing an opinion that is a mere two years old (and one that reaffirmed prior precedent against an Apprendi challenge), guidelines that fix mandatory minimum sentences, or “softer” minimum sentences subject to a departure power, do not contravene the Sixth Amendment.

The Blakely majority also endorsed the continuing constitutionality of traditional indeterminate sentencing systems in which trial judges are allowed but not required to engage in free-form factfinding before selecting punishment within broad statutory ranges.[20] The Court expressly distinguished the sentencing rules considered in the leading case of Williams v. New York,[21] from the system of structured discretion in Blakely:

Williams involved an indeterminate-sentencing regime that allowed a judge (but did not compel him) to rely on facts outside the trial record in determining whether to sentence a defendant to death. … The judge could have “sentenced [the defendant] to death giving no reason at all.”[22]

Thus, although a great deal of judicial factfinding may take place in indeterminate systems, and the jury is removed from this process, the absence of constraint upon judicial discretion somehow works to immunize the process from the jury trial guarantee. If Washington State had never enacted sentencing guidelines, and had retained its former indeterminate system providing a ten-year maximum for second-degree kidnapping, there is no constitutional question that the trial judge in Blakely could have imposed the same sentence, for the same reasons, that was found infirm under a presumptive guideline structure.

One final gnarl in the caselaw bears mention. Most guideline states base presumptive sentences on the charges of conviction along with some kind of “criminal history” or “offender” score. To the extent that these calculations are based on offenders’ prior convictions as determined by the sentencing court, they are—for now—exempted from the Sixth Amendment jurisprudence. Although the Court may later change its mind, in its most recent decisions it has relied upon its 1998 decision in Almendarez-Torres v. United States,[23] to say that facts concerning prior convictions are not included in the Apprendi-Blakely rule requiring trial by jury.

Almendarez-Torres, however, is yet another of the Court’s flimsy 5-4 decisions. No one is sure if it will remain good law. Two years after the case was decided, one of the five Justices in the majority, Justice Thomas, wrote in the clearest possible terms that his vote in Almendarez-Torres had been a mistake.[24] Moreover, the four dissenting Justices in Almendarez-Torres were all in the majority in Blakely. Now that Justice Thomas has switched sides, one can easily imagine the “Blakely five” reuniting to overrule the prior-conviction exception to the Apprendi-Blakely rule.[25] If this is done, the impact of the Sixth Amendment caselaw on the routine operations of many existing sentencing systems would be expanded.

Reading the cases together, the Court’s present Sixth Amendment jurisprudence attacks state laws that give structure to judicial sentencing discretion through the imposition of legal presumptions that may be overcome by judicial factfinding at sentence proceedings. Such systems are not invalidated as a whole, but juries and the reasonable doubt standard must be substituted for judges and a lower standard of proof when facts in aggravation are contested. At the same time, the Sixth Amendment tolerates the use of mandatory sentence enhancements triggered by judicial factfinding and allows for wholly unguided and unreviewable judicial factfinding, within broad statutory limits, in indeterminate systems. Under either the mandatory or indeterminate approach, serious penalty consequences may be based upon factual considerations identical to those that are barred from judicial resolution under a system of presumptive sentences. In sum, the Court’s solicitude to juries-as-privileged-decisionmakers is absent at the extremes, and engages only the middle ground of presumptive rules.

Potential Implications for the Model Penal Code Revision

Conditions of constitutional flux present obvious difficulties for the drafting of model legislation. The outcome in Blakely came as a huge surprise to the legal community, and may foreshadow additional surprises to come. On the other hand, the boldness of the Blakely decision may prove difficult for the Court to sustain. The Blakely majority was razor thin, and was composed of an unlikely alliance of Justices. Justices Scalia and Thomas, both originalists, were joined by Justices Stevens, Souter, and Ginsburg, whose votes were almost certainly cast from sensibilities other than strict originalism. This unstable coalition may erode in future cases when litigants press forward the language and dicta of Blakely (for example, when issues reach the Court such as those featured in bullet points at page 6). Indeed, the resolve of the “Blakely five” will soon be tested in the pending Booker and Fanfan cases.

In the event the Court does not retrench, the need for model legislation increases along with the difficulty of its preparation. On the prosaic level, many states will be searching for the best long-term responses to new constitutional requirements. Even more fundamentally, model legislation will be needed to counteract the perverse legislative incentives created by Blakely and related decisions. From a policy standpoint, it is unfortunate that the Sixth Amendment should complicate the comparatively progressive enterprise of structured sentencing reform, which seeks a balance between law and judicial discretion, while granting a constitutional “free pass” to the comparatively discredited machineries of mandatory minimum sentence enhancements and indeterminate sentencing. Legislatures seeking the path of least resistance may gravitate toward greater reliance upon mandatory provisions, indeterminacy, or some combination of the two—unless they perceive a sound policy basis for the middle course of penalty presumptions. The MPCS revision can assist the states in determining whether the “constitutional tax” that attaches to presumptive sentencing reform is worth paying.[26]

The remainder of this report will highlight some of the possible adjustments within or beyond MPCS, Preliminary Draft No. 3 to respond to Blakely. The full range of possibility is large, and turns upon the resolution of doctrinal uncertainties in Blakely itself, as well as contestable policy judgments that follow any set of doctrinal assumptions. Only the most important permutations will be discussed.

1. The federal sentencing guidelines are not statutes, but are administrative regulations that acquire force of law in the absence of Congressional action that overrides them. It is possible that the Supreme Court in Booker and Fanfan will find that such a system of administrative sentencing guidelines (and appellate sentence review) does not fall subject to Blakely.

If so, the substance of virtually all the recommendation in Preliminary Draft No. 3 would be unaffected, with one important change. Alternative versions of § 6B.11 now contemplate that sentencing guidelines may gain force of law through an administrative rulemaking process (subject to legislative override) or may affirmatively be enacted as statutes.[27] The proposed Comment currently observes that states have had equal success with either approach.[28] If constitutional difficulty attaches only to statutory sentencing presumptions, then § 6B.11 might be amended to express a preference for the “administrative” alternative.

Most observers think it unlikely that the Court will find any constitutional distinction between statutory and administrative guidelines, and some even consider the argument frivolous. The most frequently-voiced rationale for these positions is that the Court will not allow a legislature to delegate to a sentencing agency a power the legislature does not itself possess. This straightforward viewpoint may not carry the day, however, if even a single Justice among the Blakely five finds it unpersuasive. There are at least two doctrinal reasons why this might occur.

First, a sentencing commission’s rulemaking power is not in fact coextensive with a legislature’s power to pronounce and alter penalty laws. Administrative sentencing guidelines must invariably work within the preexisting framework of legislatively-authorized punishments. Guidelines adopted as statutes, in contrast, may supersede preexisting legislation. Sentencing commissions alone are not empowered to define new offenses, offense elements, and penalty ranges. Only the legislature may do so—and (arguably) it is only these legislative actions that implicate Blakely.

Second, the Court reiterated in Blakely that discretionary factfinding by sentencing judges within legislative punishment ranges remains constitutionally inoffensive. This suggests that other discretionary players in the sentencing system may too contribute to the factfinding enterprise—if they likewise are confined by statutory boundaries. A majority of the Court, as observed earlier, loses interest in the principle of jury-as-privileged-factfinder in surprising contexts. It will only require one defection from the Blakely five to add Booker and Fanfan to the list.

Reports of the oral arguments in Booker and Fanfan provide little reason to suppose that any Justice in the Blakely majority is attracted to a distinction between administrative and statutory guidelines for Sixth Amendment purposes. Questions by Justices Scalia, Souter, and Ginsburg were built on the premise that statutory and administrative guidelines have identical functional effects in the courtroom. Justices Stevens and Thomas did not betray their thinking, but said nothing to indicate hesitation or concern over the issue.[29] Of course, behavior at argument does not commit the Justices, and we will know the outcomes in Booker and Fanfan soon enough. It is enough to note that there remains a possibility the Court will place sharp limits on Blakely’s apparent capacity to reach out to numerous decisionmakers and decision points in a sentencing system.

2. If Blakely is held to apply to all existing presumptive sentencing systems (whether the presumptions are statutory or otherwise), the basic approach of Preliminary Draft No. 3 could be maintained if the Institute concludes it is good policy to recommend jury determination of aggravating penalty factors during trial or at a bifurcated sentence proceeding. This approach was adopted by the Kansas legislature in 2002 when confronted with a state court decision under the state’s sentencing guidelines that was remarkably similar to Blakely.[30] To date, the Kansas sentencing system has suffered little disruption from the new procedure. Only a small minority of all criminal cases are affected, most of these are resolved in the plea bargaining process, and the few cases that have actually used the new procedures have been resolved with little added time and effort.[31] As of this writing, the “Kansas fix” is a favored option of many states in their early discussions of responses to Blakely.[32]

The attraction of the Kansas fix is greatest in those jurisdictions that anticipate they will not have to make use of jury sentencing proceedings very often. In most sentencing guidelines states, aggravated departures are comparatively infrequent events—and cases in which aggravated departures are contested are rarer still. In Washington State, for example, there were only 628 aggravated departures among the 27,000 felony cases sentenced in the most recent reporting year prior to Blakely. A mere 101 of those were contested cases.[33] Similarly, the Minnesota Sentencing Guidelines Commission has issued a report on the impacts of the Blakely decision estimating that only two to three percent of felony sentences each year will be affected.[34]

Policymakers in many state guideline jurisdictions take a positive view of their reformed sentencing systems as compared with their prior sentencing systems. In states like Kansas, Minnesota, North Carolina, Ohio, Oregon, and Washington, there is much sentiment that the benefits of sentencing reform outweigh the incremental procedural costs of responding directly to Blakely’s Sixth Amendment mandate.

The Kansas fix is much less attractive to policymakers in the federal system (assuming Blakely applies) for two important reasons. First, there is little consensus among federal judges, practitioners, and observers that the federal sentencing guidelines have been an improvement over prior law. On the fundamental policy question of whether the federal guidelines are worth preserving, the federal experience has been dramatically opposed to the experience in many guideline states. Second, even among those who would wish to salvage the current federal system, one serious impediment is that the federal guidelines require far more judicial factfinding at sentencing than any of the state guideline systems. This is no small distinction. Indeed, the degree of reliance upon legally-required judicial factfinding in federal law is far greater than in any other sentencing system in the history of the planet.[35] The detailed, mechanical, fact-driven federal guidelines, including their controversial “relevant conduct” provision requiring the determination at sentencing of uncharged and unproven offenses, foreclose the chief pragmatic advantage of the Kansas fix to the states: that it will not have to be used often.

Because the MPCS project is addressed to state legislatures, some variation upon the Kansas fix should be seen as the leading contender to bring Preliminary Draft No. 3 into compliance with Blakely—if the Supreme Court rules in Booker and Fanfan that Blakely applies to administrative as well as statutory guidelines. The major drafting accommodations would come in revisions to § 7.07 of the original Model Penal Code, dealing with “Procedure on Sentence.”[36] Section 7.07, already slated for heavy revision,[37] was not included in Preliminary Draft No. 3, but could become one of the lead subjects of the next round of drafting.

3. The Kansas fix meets Blakely head on, by providing for jury resolution of facts in controversy where the Supreme Court has said this is required. A competing approach is to find an “avoidance strategy.” This may entail the redesign of the architecture of a jurisdiction’s sentencing system so that Blakely no longer applies. As noted earlier, unless the Court overrules its own recent precedents, state legislatures and Congress are free to replace presumptive sentencing rules with a matrix of mandatory minimum penalties, minimum sentence enhancements, a return to the unchecked discretion of indeterminacy, or some combination of the above.

A short memo cannot canvass all of the avoidance techniques that have been floated nationwide in the months since Blakely—and the demerits of many of these are likely to be self-evident. Two issues in particular warrant discussion: First, in the federal system and in some states, the suggestion has been made that Blakely can best be circumvented by replacing presumptive sentencing guidelines (or other presumptive sentencing provisions) with “voluntary” or “advisory” guidelines.

On legal grounds, it is probably correct that judicial factfinding under a voluntary guideline system will slip past Blakely’s Sixth Amendment rule. In the words of Justice Scalia, factfinding by sentencing courts in such a system is not “legally essential to the punishment.” Rather, factfinding is done by the court simply to be conscientious before rendering a purely discretionary decision. On this view, voluntary guidelines elide Blakely for the same reason that indeterminate sentences survive untouched. If a judge’s factfinding discretion at sentencing is unconstrained, its very robustness renders it inoffensive to the jury trial guarantee.

As with all legal analyses following Blakely, however, the just-stated conclusions are not free from doubt. Two distinguished publications from the Vera Institute of Justice have asserted that Blakely may indeed apply to factfinding under most voluntary guideline structures. When state law requires that trial judges provide an explanation of their reasons for imposing a penalty other than that specified in the voluntary guidelines, Vera argues that Blakely issues arise. To the extent that the legally-required explanation necessarily turns on factual considerations, these may be viewed as “legally essential to punishment” under Blakely. [38]

On policy grounds, substantial costs may attend the switch from presumptive to voluntary sentencing principles—especially from the perspective of state government. Voluntary provisions are by definition unenforceable, and thus allow for the reemergence of sentencing disparities that motivated many of American sentencing reforms in the first instance. Even if many judges give credence to advisory guidance, there is no systemic remedy for outlier sentences. Closely related to this point, no jurisdiction with voluntary guidelines has yet succeeded in building up a meaningful practice of appellate sentence review. This longtime goal of the criminal justice reform community has been realized only in states with presumptive sentencing guidelines, or other statutory sentencing presumptions, including Alaska, Kansas, Minnesota, Ohio, Oregon, Tennessee, and Washington.

Perhaps more importantly, most states that have worked with presumptive sentencing guidelines have come to see them as essential tools in the deliberate management of prison population growth, prioritization in how prison bedspaces are allocated, and informed planning for the greater use of intermediate sanctions (including drug treatment, home confinement, halfway houses, restorative justice alternatives, and the like). In contrast, states that have employed voluntary sentencing guidelines have had a decidedly mixed record in these “resource management” arenas. Most states using voluntary guidelines have experienced rates of prison growth that outstrip national trends (not always an easy task, particularly in the 1990s). The presumptive guidelines systems, in contrast, have proven remarkably successful in retarding prison growth overall, while reorganizing the use of prison spaces to provide more and longer confinement terms for violent offenders.[39]

It may be true that a system of advisory sentencing guidelines will be the best available option for post-Blakely reform in the federal system. The politically feasible alternatives to voluntary guidelines, most relying on the expanded use of mandatory penalty rules, would likely be worse. Although the issue of voluntary guidelines will no doubt be debated in the MPCS context, as well, it will be important to remember that state officials see the landscape of sentencing reform from a wholly different vantage point than federal officials. The states’ investment in presumptive guidelines is greater and more broadly based among legislators, judges, prosecutors, and the defense bar than has ever been true within the federal system. Moreover, the states face relentless budgetary pressures in the correctional domain, while Congress barely blinks an eye at the prospect of expanding prison costs. The policy considerations that inform MPCS drafting, on this and other issues, must remain those most urgent to the states.

4. A second “avoidance technique” worthy of discussion would conjoin the release authority of parole boards with the legal presumptions of sentencing guidelines in order to render Blakely inapplicable. There have been early suggestions that guidelines speaking only to the date of parole release eligibility may fall into one of the blindspots in the Supreme Court’s Sixth Amendment caselaw. If so, such systems may gain a comparative constitutional advantage in the post-Blakely world that they did not possess beforehand.

Presumptive sentencing guidelines coexist with parole release discretion in the states of Michigan and Pennsylvania. Shortly after Blakely was decided, the Michigan Supreme Court ruled that its state’s guidelines were unaffected by Blakely because they fix only parole eligibility dates and do not address the maximum prison term an inmate may serve if parole is never granted.[40] (Recall that, under Harris and McMillan, the Supreme Court has approved of judicial factfinding at sentencing, and perceives no necessity for jury trial, when the severity of a minimum punishment is enhanced below an unchanging maximum.) On similar reasoning, the Pennsylvania Sentencing Commission has reached the same conclusion internally, and one member of the commission has already authored a thoughtful law review article recommending the guideline-plus-parole-release approach to other jurisdictions caught in Blakely’s net.[41]

Here again, it is far from clear that the above constitutional reasoning is airtight. If the only function of judicial sentencing in prison cases is the determination of parole eligibility, a majority of the Court may deem this to be the true “punishment” with which the Sixth Amendment is concerned.[42] This may or may not entail the overruling of Harris.[43] Further, it is not clear that the Harris principle will have application to sentencing presumptions that address the “in-out” decision (prison versus a community sanction), or presumptions concerning the intensity of community punishments that different offenders should receive. These decisional thresholds are an important part of many guidelines systems—including all of the better systems.

At the core of this question, however, are policy concerns about the wisdom of recommending the revitalization of parole-release discretion to states that have abandoned it, or its retention in other states that are considering their options. Historically, parole boards have been among the most disappointing of criminal justice institutions. Since 1980, the increasing politicization of parole release decisions has helped ensure that most states with parole release agencies had higher incarceration rates, and more rapid rates of incarceration growth, than states that had abolished parole release. Indeed, one recent study found that, based on data for 1995 to 2001, eight of the top ten states in per capita prison rates were states that retained the prison release discretion of a parole board, fifteen of the top twenty high-incarceration states broken down by region (the top five states in each of four regions) were parole release states, and nine of the top ten incarceration growth states since 1995 were parole-release states.[44]

As with the question of voluntary versus presumptive guidelines, there are many policy considerations that must inform the full debate of the parole-release issue. Even before Blakely, some voices within and outside the Institute had been raised in favor of some form of prison release authority, which could include a “reinvention” rather than mere replication of traditional release practices.[45] By some lights, the advent of Blakely adds attraction to this line of thought.

Conclusion

As opposed to the federal system, where the systemic effects of Blakely are likely to be enormous, knowledgeable participants in state criminal justice systems view the newly-announced Sixth Amendment requirements as presenting a manageable problem that can be met without massive retoolings of their sentencing systems. The most likely Congressional response to Blakely, Booker, and Fanfan, will be a whole-system adjustment to avoid whatever jury trial requirements the Supreme Court imposes on current federal sentence proceedings. At the state level, there should be much greater willingness to accept Blakely’s mandate. Many states remain firmly committed to the path of sentencing reform they have embarked upon in the past twenty-five years. It will be more palatable in these jurisdictions to absorb Blakely’s incremental procedural costs, while preserving the larger gains they have won, than to step backward toward indeterminacy or the more frequent use of mandatory penalties. Future MPCS drafting should be guided by like concerns.

*******

This document, as of the date it was circulated, had not been considered by the Council or membership of the American Law Institute, and therefore does not represent the position of the Institute on any of the issues with which it deals.

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( © 2004 by the American Law Institute. All rights reserved.

[1] See, e.g., the comments of former Solicitor General Kenneth Starr, reported at , September 28, 2004:

"This Court tends not to like disruptive movements," says Starr, now dean of Pepperdine University School of Law. Starr predicts a majority of the Court will find a way to uphold the federal guidelines.

[2] See MPCS, Report (April 11, 2003), at pp. 125-27 (noting a “Supreme Court jurisprudence that establishes virtually no constitutional oversight upon state or federal punishment practices”).

[3] The Reporter has already worked with numerous state sentencing commissions, policymakers in states without commissions, and national law reform organizations in their efforts to comprehend Blakely’s meaning and design workable responses.

[4] In describing the lower court proceedings in Blakely, and the operation of the Washington sentencing system, I use the term “statutory maximum” as it was understood in Washington State prior to the Supreme Court’s ruling in Blakely.

[5] For a summary of these pre-Blakely procedures, see Washington Sentencing Guidelines Commission, Adult Sentencing Guidelines Manual 2003 (Olympia, WA, 2003), at p. I-22. This document can be downloaded at .

[6] Deliberate cruelty in a domestic violence setting was an enumerated aggravating factor in the Washington guidelines. See Revised Code of Washington, § 9.94A.390(2)(h) (2000), since recodified as § 9.94A.535(2)(h) (2004).

[7] State v. Blakely, 47 P.3d 149, 157-59 (Wash. App. 2002), rev’d sub nom. Blakely v. Washington, 124 S.Ct. 2531 (2004)

[8] 530 U.S. 466 (2000).

[9] Apprendi, 530 U.S. at 490. See also Ring v. Arizona, 536 U.S. 584, 602 (2002).

[10] See State v. Blakely, 47 P.3d at 159.

[11] State v. Gore, 21 P.3d 262 (Wash. 2001).

[12] See United States v. Goodine, 326 F.3d 26 (1st Cir. 2003); United States v. Luciano, 311 F.3d 146 (2d Cir. 2001); United States v. DeSumma, 272 F.3d 176 (3d Cir. 2001); United States v. Kinter, 235 F. 3d 192 (4th Cir. 2000); United States v. Randle, 304 F.3d 373 (5th Cir. 2002); United States v. Helton, 349 F.3d 295 (6th Cir. 2003); United States v. Johnson, 335 F.3d 589 (7th Cir. 2003) (per curiam); United States v. Piggie, 316 F.3d 789 (8th Cir. 2003); United States v. Toliver, 351 F.3d 423 (9th Cir. 2003); United States v. Mendez-Zamora, 296 F.3d 1013 (10th Cir. 2002); United States v. Sanchez, 269 F.3d 1250 (11th Cir. 2001); United States v. Fields, 251 F.3d 1041 (D.C. Cir. 2001).

[13] See State v. Lucas, 548 S.E.2d 712 (N.C. 2001); State v. Dilts, 82 P.3d 593 (Ore. 2003); State v. Dean, 2003 WL 21321425 (Minn. App., June 10, 2003) (unpublished opinion). Prior to Blakely, the only appellate decision in the nation to sustain an Apprendi challenge to an aggravated departure in a sentencing guideline system was State v. Gould, 23 P.3d 801(Kan. 2001).

[14] See Mistretta v. United States, 488 U.S. 361, 396 (1989); Edwards v. United States, 523 U.S. 511, 515 (1998); Witte v. United States, 515 U.S. 389 (1995). Indeed, the Apprendi Court had recited the relevant language from Edwards, see 530 U.S. at 497 n. 21 (quoting a unanimous Court’s observation that the constitutional claims in Edwards would have been stronger “if it were possible to argue , say, that the [guidelines] sentences imposed exceeded the maximum that the statutes permit” and the Edwards Court’s further statement that “a maximum sentence set by statute trumps a higher sentence set forth in the Guidelines”).

[15] 124 S.Ct. at 2537.

[16] Id. at 2543.

[17] Id. at 2536 n. 5.

[18] Id. at 2538-39 (citations to historical sources omitted).

[19] Justice Breyer stated in Harris that he “cannot easily distinguish [Apprendi] from this case in terms of logic.” Explaining his vote even so, he said that “I cannot yet accept [Apprendi’s] rule.” 536 U.S. at 569 (Breyer, J., concurring). A common reading of Breyer’s opinion is that, at the time, he was waging a defensive battle to shield the federal sentencing guidelines from successful attack under Apprendi. See Emily Bazelon, Locked In, Boston Globe, August 1, 2004. If this conjecture is correct, it may now—or soon—appear to Justice Breyer that he has lost the battle to save his former conception of sentencing reform, and must adjust his future votes to best serve the new post-Blakely realities.

[20] The Blakely Court distinguished Williams v. New York, 337 U.S. 241 (1949), as follows:

Williams involved an indeterminate sentencing regime that allowed a judge (but did not compel him) to rely on facts outside the trial record in determining whether to sentence a defendant to death. … Thus, [Williams did not involve] a sentence greater than what state law authorized on the basis of the verdict alone.

Blakely, 124 S.Ct. at 2538.

[21] 337 U.S. 241 (1949). Williams is frequently cited for its statement of the breadth of factfinding at sentencing available to trial courts in indeterminate sentencing structures:

A sentencing judge … is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant—if not essential—to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.

Id. at 247. In Williams itself, the extra-conviction information considered by the sentencing court included allegations that the defendant had committed thirty burglaries that were never charged nor proven, plus additional uncharged offenses on the night of the felony murder that gave rise to the death penalty proceedings. For a full discussion of the background of Williams, see Kevin R. Reitz, Sentencing Facts: Travesties of Real-Offense Sentencing, 45 Stan. L. Rev. 523, 528-31 (1993).

[22] 124 S.Ct. at 2538. Although Williams was a death penalty case, the Court made it clear that its reasoning applied to indeterminate sentences in other contexts. See 337 U.S. at 246-47.

[23] 523 U.S. 224 (1998).

[24] See Apprendi v. New Jersey, 530 U.S. 466, 518-21 (2000) (Thomas, J., concurring).

[25] The Supreme Court has accepted a case for review in the coming term that may set the stage for reconsideration of Almandarez-Torres. See United States v. Shepard, 348 F.3d 308 (1st Cir. 2003), cert. granted, 124 S.Ct. 2871 (June 21, 2004); see also comments of attorney Bill Frick, posted at on August 5, 2004.

[26] This is Justice O’Connor’s apt phrase, see Blakely, 124 S.Ct. at 2456 (O’Connor, J., dissenting) (“While not a constitutional prohibition on guidelines schemes, the majority’s decision today exacts a substantial constitutional tax”).

[27] See Preliminary Draft No. 3 at 200-02.

[28] See § 6B.11 Comment b.

[29] As of this writing, a full transcript of the oral arguments is not available, but there has been a great deal of press coverage, see, e.g., Linda Greenhouse, Justices Show Inclination to Scrap Sentencing Rules, New York Times, October 5, 2004, p. A13; Charles Lane, Sentencing Rules Get Hearing, Washington Post, October 5, 2004, p. A3; Charles Savage, High Court Returns to Sentencing Issue: Constitutionality of U.S. System Questioned, Boston Globe, October 5, 2004. In addition, a number of internet blogs have posted extended accounts of the arguments, including maintained by Ohio State Law Professor Douglas A. Berman and maintained by Columbia law student Jason Hernandez.

[30] See Kansas Statutes § 21-4718 (2004). The case prompting the legislation was State v. Gould, 23 P.3d 801(Kan. 2001).

[31] See Adam Liptak, Justices’ Sentencing Ruling May Have Model in Kansas, New York Times, July 13, 2004. The Reporter and Judge Richard Walker (an Adviser to the MPCS project, a Kansas trial court judge, and former Chair of the Kansas Sentencing Commission), have undertaken an investigation of the Kansas experience since Gould. Our eventual report will help inform the MPCS revision process. In interviews with judges, prosecutors, and defense counsel across the state, we have yet to find anyone who believes that the post-Gould statutory changes have had any appreciable effect on the operation of the Kansas sentencing process.

[32] See, e.g., Minnesota Sentencing Guidelines Commission, The Impact of Blakely v. Washington on Sentencing in Minnesota: Long Term Recommendations (Saint Paul: MSGC, September 30, 2004), available at .

[33] These figures were provided by David Boerner, Chair of the Washingtion State Sentencing Commission, see Laurie Cohen P. Cohen and Gary Fields, Court Ruling Causes Tumult In Sentencings, Wall Street Journal, June 28, 2004, at p. B1.

[34] These estimates were based on the number of cases with contested aggravating factors in 2002 and 2003, see Minnesota Sentencing Guidelines Commission, The Impact of Blakely v. Washington on Sentencing in Minnesota: Long Term Recommendations, at 8-9. The commission concluded that the provision of jury factfinding procedures to accommodate Blakely “should not create a severe crisis within the state’s criminal justice system.”

[35] For further discussion of the unique features of the federal guidelines, see MPCS, Report, at pp. 115-25.

[36] This is where the Kansas legislation focused. All other elements of the Kansas guideline structure were left intact, including the judge’s ultimate discretion to determine whether the jury’s factual findings concerning aggravating factors were legally sufficient to justify a departure sentence.

[37] See MPCS, Plan for Revision (January 29, 2002), at pp. 94-97.

[38] See Jon Wool and Don Stemen, Aggravated Sentencing: Blakely v. Washington: Practical Implications for State Sentencing Systems (Vera Institute of Justice, August 2004); Jon Wool, Aggravated Sentencing: Blakely v. Washington: Legal Considerations for State Sentencing Systems (Vera Institute of Justice, September 2004). Both publications may be downloaded at . The Vera reports suggest that “fully voluntary” guidelines, under which no statement of reasons for departure is required of sentencing courts, would be immune from Blakely concerns. Such systems, however, would suffer losses in transparency and reviewability even beyond the other disadvantages of voluntary guidelines (discussed infra in text).

[39] This is not to say that voluntary guidelines can never assist states in their pursuit of resource-management functions. The track record of numerous sentencing systems merely suggests that these efforts have failed more often than they have succeeded.

[40] People v. Claypool, 684 N.W.2d 278 (Mich. 2004).

[41] Steven L. Chanenson, The Next Era of Sentencing Reform, 54 Emory L.J. ___ (forthcoming, 2005).

[42] The Vera Institute also expresses doubt on this point. See Wool, Aggravated Sentencing: Blakely v. Washington: Legal Considerations for State Sentencing Systems, pp. 7-8.

[43] Even if Harris shields the Michigan/Pennsylvania approach, as discussed earlier, there is speculation that Justice Breyer’s weak fifth vote in Harris can no longer be counted upon in Blakely’s aftermath.

[44] Kevin R. Reitz, Questioning the Conventional Wisdom of Parole Release Authority, in Michael Tonry ed., The Future of Imprisonment (New York: Oxford University Press, 2004), pp. 220-21.

[45] See MPCS, Report, p. 5; Joan Petersilia, When Prisoners Come Home: Parole and Prisoner Reentry (New York: Oxford University Press, 2003), pp. 187-98.

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