Judge Not

The scramble to make sense of Blakely

In March of last year, Dwight W. Watson, a tobacco farmer, drove a tractor into a pond on the National Mall and threatened to blow it up. It turned out he didn't have any explosives, but the standoff paralyzed sections of Washington, D.C. for two days before he surrendered. A jury convicted Watson of making threats and damaging federal parkland, for which the federal sentencing guidelines dictate a 16 month prison term.

The judge in the case, however, agreed with prosecutors that Watson had caused "havoc and fear" in the city. The federal sentencing guidelines call for increases in punishment on these kinds of sentencing factors. Watson's sentence was increased from 16 months to 6 years.

Today, Dwight Watson is a free man. The Supreme Court ruled a few weeks ago in Blakely v. Washington that the sentencing guidelines of Washington State violate the right to a jury trial because they let a judge find aggravating factors when the facts have not been presented to a jury. Though Blakely only directly applies to the state of Washington, the federal sentencing guidelines and guidelines in several other states have been called into question.

In the resulting chaos, judges, prosecutors, and Congress are trying to find a new set of rules for sentencing. Criminals are sentenced in federal courts every day, and the Blakely ruling throws hundreds of thousands of recent and in-progress sentences into confusion.

There are three basic sentencing systems that might emerge. First, the guidelines might be used only based on facts admitted by the defendant in a guilty plea or found by the jury, as the judge in Watson's case decided. Second, the guidelines could be abandoned completely, which would bring a return to judicial discretion in sentencing. Or third, the guidelines could be dropped from their current mandatory status to simple recommendations on sentencing for judges. In fact, all of these are happening now, as judges grapple with interpretations of the Blakely decision.

It does seem unfair to increase a convicted criminal's sentence based on information never presented to the jury or, even worse, based on counts on which the jury specifically acquitted the defendant. Constraining judges strictly to proved factors under the sentencing guidelines is causing a lot of leniency right now, but only for cases that were already in progress when Blakely was decided. Federal prosecutors are now asking plea-bargaining defendants to sign a waiver giving up their rights under Blakely and related cases. According to a Department of Justice memo, prosecutors will now be including all aggravating factors directly in the indictment. Juries can also be given a checklist of factors to rule on in the sentencing phase of a trial, to make sure all of the possibilities in the sentencing guidelines are accounted for. After a short adjustment period, there will be no more cases like U.S. v. Shamblin, in which a drug trafficker's sentence was reduced from twenty years to just one.

There is a reasonable argument to be made that the guidelines are meant to be taken as a whole, and cannot be dismantled to allow judges downward departures from a sentence but not upward departures. Why should a judge be allowed to shave six months off a sentence because the criminal shows regret for his actions, but be forbidden to add six months to a sentence because the criminal caused fear in his victim? If some factors can be considered (mitigating ones) but others can't (aggravating ones), sentences are bound to be more lenient than Congress and the Sentencing Commission intended. Justice O'Connor, predicting the downfall of the federal guidelines in her dissent in Blakely, writes, "Congress and States…will either trim or eliminate altogether their sentencing guidelines schemes and, with them, 20 years of sentencing reform."

Indeed, some judges have declared that they will no longer view the guidelines as mandatory at all. Most notably, Judge Cassell stated in a Utah case, U.S. v. Croxford, that he will now decide sentences at his own discretion between the statutory minimum and maximum penalties, but he will use the federal guidelines as recommendations.

Legally, there is no difference between trashing the guidelines entirely and keeping them on in an advisory role. Nonetheless, some experts believe non-mandatory guidelines are the best option. Erik Luna, Associate Professor of Law at the University of Utah, says, "The goal is to have guidelines that guide. To have a common law system whereby the interaction between judges and appellate courts would determine what factors are appropriate to use in giving a sentence."

The Supreme Court will almost certainly hear a case challenging the federal guidelines very soon. Congress will want to weigh in on the decision as well, though whether they will change the structure of the guidelines, change the procedures for applying them, or repeal them altogether is still up in the air. Federal sentencing might become more arbitrary, or it could end up better than it's been. In the meantime, a lot of people behind bars are calling their lawyers.