Saturday,September29,2018Page 1
TO SEVER OR NOT TO SEVER?
WHY BLAKELY REQUIRES ACTION BY CONGRESS
by
Albert W. Alschuler
Julius Kreeger Professor of Law and Criminology, the University of Chicago
(forthcoming 17 Federal Sentencing Reporter ___ (Oct. 2004)).
The Supreme Court’s decision in Blakely v. Washington[1] requires a response from Congress – and the sooner the better. At present, however, the Senate has merely passed a resolution indicating its hostility to Blakely and urging the Supreme Court to make the issue go away.[2] The House has done less.
An army of apparently knowledgeable observers has aided and abetted Congress’s crime. The recent Senate resolution noted that “the Department of Justice, the Sentencing Commission, and others advised the [Judiciary] Committee that corrective legislation was not necessary at this time, with the hope that the Supreme Court would clarify the applicability of its Blakely decision to the Federal Sentencing Guidelines in an expeditious manner.”
Among the “others” who counseled against prompt Congressional action were some editors of this journal, Professors Berman, Miller, Demleitner, and Wright. They told the Judiciary Committee, “As editors of the leading casebook and journal on sentencing law, . . . we have a simple and straightforward recommendation . . .: go slow.”[3] These authorities declared that the current “legal variety” in judicial responses to Blakely was healthy, and they expressed concern that Congressional action might “short-circuit the experience and creativity of thousands of lawyers and judges now working through these problems.” Delay, by contrast, would enable Congress to “draw on the efforts and experiences” of these practitioners and judges. Although the authors called Blakely “a legal earthquake,” they said it was “not a disastrous event for the federal sentencing system.” For these imperturbable experts, it was sufficient, for now, to let a thousand flowers bloom.
Neither these scholars, nor most others, nor Congress seems adequately to have recognized the unavoidable defects of every possible judicial response to Blakely. They do not seem to have recognized the ease with which Congress could enact a fair and rational sentencing system consistent with Blakely’s principles. In proposing that Congress await the accumulated wisdom of lawyers and judges, they appear to have assumed that, in responding to Blakely, the courts and Congress will address essentially the same issues.
This commentary proposes a sentencing system that courts could not implement without Congressional action – one in which judges would be guided but not bound by sentencing guidelines, in which they would impose determinate sentences not subject to adjustment by a parole board, and in which their sentences would be subject to appellate review for reasonableness and proportionality. If approved by Congress, this system could remain in place indefinitely without incongruity or embarrassment and without the one-sided tilt of other proposed responses to Blakely.[4] Legislators determined to eliminate all judicial discretion and to ensure that Blakely never results in more lenient sentences than the courts would have imposed without it will not cheer this proposal, but the proposal might be acceptable, at least as an interim measure, to almost everyone else.
I. Blakely and the Guidelines
Blakely held that all facts necessary as a matter of law to increase a criminal sentence must be found by a jury beyond a reasonable doubt. This decision almost certainly prevents federal judges from increasing an offender’s sentence on the basis of the enhancements specified in the United States Sentencing Guidelines. Even such supporters of the Guidelines as Justice O’Connor and Justice Breyer, dissenting in Blakely, recognized that the government’s efforts to distinguish federal-Guideline enhancement from the state enhancement at issue in that case were “half-hearted.”[5]
The Seventh and Ninth Circuits have held that federal-Guideline enhancement cannot be squared with Blakely.[6] So has the Eighth Circuit, although it will reconsider this ruling en banc.[7] At least a dozen federal district courts (a substantial majority of those that have addressed the issue) have held the Guidelines invalid.[8]
The Fifth Circuit, however, has upheld the Guidelines, noting that earlier Supreme Court decisions had sustained the Guidelines against various challenges and that the Court has instructed lower federal courts not to disregard any of its earlier rulings unless told to do so explicitly.[9] The Second Circuit has similarly instructed trial judges to continue to impose Guidelines sentences until the Supreme Court tells them not to.[10] In addition, the Fourth and Sixth Circuits have upheld the Guidelines. At this writing, however, these courts have offered no opinions in support of their rulings.[11]
Although many court of appeals judges have made clear their desire to keep the Guidelines if they can, only one of these judges seems to have contended that sentence enhancement under the Guidelines is truly distinguishable in principle from the enhancement struck down in Blakely.[12] Judge Easterbrook, dissenting in the Seventh Circuit, focused on the Court’s use of the term “statutory maximum” in both Blakely and its precursor, Apprendi v. New Jersey.[13] He argued that because the Guidelines are not “statutes,” they cannot be the source of “statutory maximums.”
Of course, as Judge Easterbrook did not deny, the Guidelines have the force of statutes;[14] the Sentencing Commission must submit them to Congress to allow Congress to disapprove any guidelines it dislikes;[15] Congress has in fact exercised its power to disapprove particular guidelines;[16] Congress also has amended particular guidelines;[17] a statute directs judges to follow the Guidelines;[18] and a judge who fails to follow them will be reversed. Moreover, to allow Congress to delegate to an agency the power to create a sentencing system that would violate the right to jury trial if Congress enacted this system itself would be bizarre.
Judge Easterbrook nevertheless insisted that guidelines are not statutes: “For the vital proposition that anything functionally equivalent to a statute . . . must be treated as a statute, the majority cites – nothing.”[19] Despite Judge Easterbrook’s forceful rhetoric, his asserted distinction comes close to failing the laugh test. If this earnest but thoroughly unconvincing distinction is the best the defenders of the Guidelines can offer, Justice O’Connor’s characterization of their arguments as “half-hearted” seems both false and too generous.
Blakely was a five-to-four decision. In light of the gasps of astonishment and premonitions of doom that followed this decision, one or more of the justices in the majority might grow faint, quiver, invoke a disingenuous ground of distinction to uphold the Guidelines, or even backpedal and make Blakely short-lived. A straightforward application of Blakely, however, means the end of judicially determined enhancements under the Federal Sentencing Guidelines. What remedy follows from this conclusion, however, is a far closer question. The principle competing answers are “severability” and “non-severability.”
II. Severability
The most obvious judicial response to Blakely is to impose the sentence required by the Guidelines for the offense found by the jury (or admitted by the defendant’s guilty plea) without any upward adjustment or enhancement. To judge from the newspapers and the law reports, this response was the most common response of federal judges in the days immediately after Blakely.[20]
In Charleston, West Virginia, for example, Judge Joe Goodwin reduced the 20-year Guidelines sentence of a methamphetamine dealer to one year. He remarked, “At 240 months, Shamblin’s sentence represented much that is wrong about the sentencing guidelines; at 12 months, it is almost certainly inadequate.”[21]
In the District of Columbia, Judge Thomas Penfield Jackson withdrew the six-year sentence he had imposed a day before Blakely in the case of a North Carolina tobacco farmer who had driven his tractor onto the Mall and threatened to detonate explosives. This defendant’s actions had led to the closing of several government offices, the deployment of SWAT teams, and road closings that disrupted four consecutive rush hours. In imposing his initial sentence, Judge Jackson called the defendant a “one-man weapon of mass destruction.” When he substituted a sentence of 16 months for his initial six-year sentence, the judge declared, “The Supreme Court has told me that what I did a week ago was plainly illegal.”[22]
In Maine, Judge D. Brock Hornby imposed a sentence of six-and-one-half years in a drug case in which the Guidelines sentence would have been at least fifteen-and-one-half years.[23] (This decision in United States v. Fanfan[24] is one of two decisions invalidating the Guidelines the Supreme Court has agreed to review.[25]) In Baltimore, Judge Marvin J. Garbis rescinded the sentence he had imposed in the case of a former Navy physicist who had attempted to seduce a girl over the internet. He observed that, in light of Blakely, the six-year prison term he had ordered was “clear error.”[26] In Manhattan, Judge Deborah A. Batts did what many other judges have done in the wake of Blakely – postpone a scheduled sentencing hearing to allow the parties to consider the effect of the Supreme Court’s decision. She noted, however, “[T]he Court is currently of the mind to sentence the Defendant ‘solely on the basis of the facts admitted by the Defendant’ during his guilty plea.”[27]
The remedy illustrated by these cases – “severing” valid Guideline provisions from invalid “adjustments” and “enhancements” – produces skewed, artificial sentences that no one has approved or would approve. Judge Paul G. Cassell of Salt Lake City has noted that, under Blakely, defendants remain entitled to downward Guideline adjustments. As he argues, sentences affording defendants the benefits of favorable Guidelines provisions without the burdens of unfavorable provisions are likely to be far from the sentences Congress or the Sentencing Commission intended.[28] They are also likely to be far from any sentence a judge would choose. (Judge Goodwin in West Virginia, while rejecting the “non-severability” remedy endorsed by Judge Cassell, recognized that his own imposition of a sentence on the basis of downward but not upward adjustments was “an artificial application of the guidelines.”[29])
The “severability” approach probably would grow less ludicrous over time. Prosecutors have begun to allege some of the circumstances justifying Guideline enhancements in indictments. Trial juries soon may be instructed to determine in special verdicts whether the government has established these aggravating circumstances beyond a reasonable doubt.
Some judges have doubted, however, that they have statutory authority to submit Guidelines issues to juries.[30] Even if they do, using juries to administer today’s Federal Sentencing Guidelines in their entirety would be unrealistic. In Brooklyn, an opinion by Judge I. Leo Glasser reproduced two mind-boggling special verdict forms – one of them 20 pages long – that prosecutors, apparently with straight faces, had submitted in a post-Blakely case. These forms forcefully illustrated that the Guidelines were not meant for juries.[31]
Moreover, some of the circumstances that lead to enhanced sentences under the Guidelines would be likely to prejudice the determination of guilt if they were alleged in indictments and proven at trial. Permitting a jury rather than a judge to determine the quantity of drugs possessed by a defendant might well be desirable – especially if the jurors were told (as, sadly, they would not be) what sentencing consequences would follow their findings. Under the Guidelines, however, quantities of drugs possessed by people other than the defendant may qualify as “relevant conduct” and produce long sentences. When a defendant has not been charged with possessing these drugs, introducing proof of their amount simply to permit a special verdict a judge might later employ in sentencing seems inappropriate. As the government noted in one case, “[R]equiring jury determinations on relevant conduct could take a criminal trial into areas far afield from the core question that is suitable for jury resolution – whether the defendant committed the particular crime with which he was charged.”[32]
Other circumstances that can lead to enhanced Guidelines sentences – for example, the defendant’s perjury or obstruction of justice at trial – cannot be known at the time of indictment. Although Blakely and its predecessor, Apprendi, held only that some circumstances leading to increased sentences must be submitted to juries and proven beyond a reasonable doubt, both decisions rested on the proposition that these circumstances were “elements” of aggravated crimes. The constitutional requirement that an indictment supply notice of every element of an offense is as well established as the requirement that all elements be shown beyond a reasonable doubt to juries.[33]
The Supreme Court seems unlikely to apply Blakely retroactively, but sentenced defendants whose convictions were not final at the time of the Court’s decision and unsentenced defendants whose trials were underway or who were awaiting sentencing are entitled to the benefit of Blakely. Because these defendants (at least most of them) have been “placed in jeopardy,”[34] they cannot now be reindicted for more aggravated offenses. Unless, by happenstance, their indictments included allegations of aggravating circumstances, the omission of these circumstances from their indictments seems likely to preclude the submission of these aggravating circumstances to juries. For these defendants, “severability” means sentencing (or resentencing) only for unenhanced offenses. The Ninth Circuit appears to have overlooked this difficulty when, after holding that judicially determined enhancements under the Guidelines cannot survive Blakely, it invited the trial judge on remand to submit aggravating circumstances to a jury.[35]
The problem of already indicted, already tried defendants is a transitional problem, but this problem might result in many odd and inadequate sentences. Justice O’Connor noted in her Blakely dissent that on March 31, 2004, “there were 8,320 federal criminal appeals pending in which the defendant’s sentence was at issue.”[36] This figure apparently included only cases in which litigants had raised Guidelines issues, not other cases on appeal in which Blakely might entitle defendants to resentencing. Justice O’Connor’s figure obviously did not include any defendants on trial or awaiting sentencing in district courts. The figure, however, probably did include a significant number of cases in which the proof of aggravating circumstances at judicial sentencing hearings was so strong that defendants who failed to raise Blakely or Apprendi objections will be unable to satisfy “plain error” standards.[37]
Plea negotiation might ameliorate some of the outlandish outcomes generated by the “severability” remedy. The Justice Department has instructed:
Prosecutor should immediately seek to obtain plea agreements that contain waivers of all rights under Blakely. The agreements should generally include provisions stating that the defendant agrees to have his sentence determined under the Sentencing Guidelines; waives any right to have facts that determine his offense level under the Guidelines (including facts that support any specific offense characteristic or enhancement or adjustment) alleged in the indictment and found by a jury beyond a reasonable doubt; agrees that facts that determine the offense level will be found by the court at sentencing by a preponderance of the evidence and that the court may consider any reliable evidence, including hearsay; and agrees to waive all constitutional challenges to the validity of the Sentencing Guidelines.[38]
This directive does not explain how prosecutors will be able to induce defendants to waive their Blakely rights when the Thornburg, Reno, and Ashcroft directives restricting plea bargaining preclude them from offering substantial concessions to defendants. Despite the Justice Department’s posturing on the subject of plea bargaining in these directives, however, it apparently wants prosecutors to bargain like mad.
The government might offer to dismiss some provable charges in exchange for waivers of Blakely rights on other charges. Defendants would have little reason to accept the government’s proposals, however, unless the proposals would produce more lenient sentences than the defendants could obtain by insisting on their rights.
Successful plea negotiation seems most likely to occur when each side can effectively threaten the other with taking sentencing-enhancement issues to a jury. Blakely might increase the credibility of jury-trial threats by defendants who have no significant likelihood of securing acquittal at trial, and it might thereby enhance these defendants’ bargaining power. Negotiation often might produce sentences more severe than Guidelines sentences for unenhanced “base” offenses but less severe than enhanced Guidelines sentences. These negotiated sentences might appear less weird than the unenhanced sentences produced without bargaining in the immediate aftermath of Blakely. Absent substantial concessions on other charges, however, defendants who face little or no risk of reindictment may have little or no reason to bargain.