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.