Sentence Deconstruction

In a new FindLaw column, attorney Mark Allenbaugh considers the fallout from the Supreme Court's recent decision in Blakely v. Washington, which overturned that state's sentencing system because it required judges to make punishment decisions based on facts not found by the jury. At least three federal judges already have found that the same flaw makes the federal sentencing guidelines unconstitutional.

The upshot, Allenbaugh says, is that hundreds of thousands of offenders will have to be resentenced. Over the short term, he suggests, judges will have three options: impose sentences based only on the facts found by the jury, which in practice would mean imposing the statutory minimum; split all trials into guilt and penalty phases; or treat the sentencing guidelines as advice rather than binding rules. Over the longer term, Allenbough hopes the crisis in sentencing provoked by Blakely will lead to saner policies that avoid both the unfairness of wide disparities and the unfairness of rigid and draconian mandatory minimums.