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July 18, 2004 - Newsweek Magazine (US)

Reading Between The Sentences

The Blakely Ruling May Have Ushered In Not Just A Period Of Chaos But A Serious Review Of What A Sane Criminal-Justice Policy Looks Like

By Ellis Cose, Newsweek

[July 26 issue] - For some 20 years judges have pretty much known what they were doing. If the job wasn't always easy, the rules -- at least when it came to sentencing -- were reasonably clear. But thanks to the U.S. Supreme Court, that clarity has vanished, leaving judges and prosecutors stumbling in confusion and the fate of thousands of convicts and defendants up for grabs.

It all started in Washington state when a troubled husband kidnapped his long-suffering wife. Ralph Howard Blakely apparently hoped to persuade her (with the help of a knife and a shotgun) to drop divorce proceedings. Incensed at Blakely's behavior, a judge sentenced him to considerably more time than Blakely had plea-bargained for -- taking advantage of a Washington law allowing an "exceptional sentence" for "substantial and compelling reasons." Blakely, of course, objected. And the Supreme Court took his side.

The June 24 ruling rejected the notion that (as routinely happens) a lone judge could find the defendant guilty of additional offenses not necessarily charged or proved in court, and sentence him accordingly. Justice Sandra Day O'Connor dissented, predicting the decision would wreak havoc. "Over 20 years of sentencing reform are all but lost," she said, "and tens of thousands of criminal judgments are in jeopardy."

There may be less fallout at the state level than O'Connor foresaw. The federal system is a different matter. Those guidelines are too complicated to change easily. Moreover, if the guidelines are unconstitutional -- which Blakely v. Washington stops just short of saying -- "every single [federal] case has a Blakely problem," observes Frank Bowman, a law professor at Indiana University.

Blakely was discharged from his sentence but immediately charged with a new crime -- hiring a jailhouse snitch to kill his wife. So while Blakely might be in prison for a while, others are rushing for the door. Most notable is Dwight Watson, the North Carolina farmer who, claiming he had a bomb, staged a one-tractor sit-in on the Washington Mall. Watson, sentenced to six years in prison just last month, saw his sentence cut to time served.

Meanwhile, federal judges are falling over each other trying to fathom Blakely. The Seventh Circuit Court of Appeals in Chicago concluded that the federal guidelines were unconstitutional. The Fifth Circuit in New Orleans decided they were just fine -- for now. The Sixth Circuit in Ohio said the guidelines were simply suggestions that a judge "may disregard when she believes that a different sentence is called for." Even Martha Stewart's lawyer got in on the act, asking a federal judge, in vain, to jettison the guidelines in sentencing his client.

Alarmed at the spreading chaos, the Senate judiciary committee summoned experts to the Hill last week. Sen. Patrick Leahy reminded those present that a sentencing process rooted in reforms to eliminate disparities and judicial capriciousness had become a vehicle for congressional mischief: "There has been a flood of legislation establishing mandatory minimum sentences... determined by politics rather than any systemic analysis."

So although America's system has become fairer (for those convicted of precisely the same crime), America has become the world champion of incarceration. With more than 2 million behind bars, even many jailers think we have gone overboard.

In the past few years roughly three fifths of the states have ameliorated their sentencing and prison policies, according to Nicholas Turner of the Vera Institute of Justice. That reassessment has been driven not just by exploding costs but by a growing recognition that some problems (mental illness and drug abuse in particular) are better solved with treatment or training than incarceration.

Congress has not yet gotten the message -- in part because it needn't concern itself with the ultimate costs, financial or social, of the mandates it hands down. "Maybe people enacting laws are so far away from the problem, their decisions aren't informed by the practical realities of what you have to do at the state level," observes Joseph D. Lehman, secretary of the Washington state Department of Corrections.

In a report released earlier this year, drafted at the behest of Justice Anthony Kennedy, the American Bar Association urged that lengthy prison terms be "reserved for offenders who pose the greatest danger to the community."

Margaret Love, an attorney involved in drafting the report, thinks the mood of the country is changing. Even at the national level she doubts politicians will receive the political payoff they once did for mindlessly jacking up convicts' prison time. If she is right, the Blakely decision may have ushered in a period not of bedlam but of serious reconsideration of what a sane criminal-justice policy looks like. As Vera's Turner observes, getting tough on crime is fine, but "now it's time to be tough and smart."

© 2004 Newsweek, Inc.

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