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June 25, 2004 - The Seattle Times (WA)

High-Court Ruling Creates Turmoil Over Sentencing

By Maureen O'Hagan, Seattle Times staff reporter

In a blow to Washington's criminal-justice system, the United States Supreme Court ruled yesterday that judges are not permitted to increase sentences based on their own estimation of the severity of a crime.

Although the full implications are not yet clear, Jeffrey Fisher, the Seattle lawyer who won the case, said "there are hundreds, if not thousands, of people with these kinds of sentences."

Mark Roe, Snohomish County chief criminal deputy prosecutor, agreed that the decision will have a dramatic impact. "It's going to affect cases everywhere. We don't think this is a good idea at all."

Legal experts in the state say it's too early to know whether the decision will apply retroactively and force many offenders to be resentenced.

The 5-4 opinion stemmed from the kidnapping conviction of a Grant County man who got three years tacked on to his sentence by a judge. The decision throws out part of a 20-year-old sentencing law that set a standard range for every crime but allowed judges room to tailor the penalty for the individual defendant.

For example, judges could pump up the punishment if they believed the offender used deliberate cruelty or targeted particularly vulnerable victims.

Not anymore.

The court ruled that these "exceptional sentences" are unconstitutional because the judge makes the decision alone: Juries don't get to hear the facts and prosecutors don't have to prove them beyond a reasonable doubt.

"The Framers would not have thought it too much to demand that, before depriving a man of three more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to 'unanimous suffrage of twelve of his equals and neighbors,' " Justice Antonin Scalia wrote in the majority opinion.

In a strongly worded dissenting opinion, which she read from the bench in what was, for her, an unusual display of disagreement with the majority, Justice Sandra Day O'Connor said "the practical consequences of today's decision may be disastrous."

"If the choice is between adopting a balanced case-by-case approach that takes into consideration the values underlying the Bill of Rights as well as the history of a particular sentencing reform law, and adopting a rigid rule that destroys everything in its path, I will choose the former," she wrote.

Federal sentencing guidelines were established in 1987, and Washington is one of nine states that have similar systems. The Bush administration supported Washington in the case, out of concern that federal guidelines be kept intact.

Other Recent Changes Here

The ruling follows a Supreme Court decision in March that created additional hurdles for prosecutors by tightening Washington's rules for admitting hearsay evidence.

Earlier this month, Washington's Supreme Court set aside a murder conviction in the death of a baby, the first application of a controversial 2002 ruling that prohibited murder convictions in cases where death was the unintentional result of an assault. (The court said manslaughter was the more appropriate charge in those cases.)

Yesterday's decision involved Ralph H. Blakely Jr., who entered an Alford plea to reduced charges of second-degree kidnapping and second-degree assault. In making an Alford plea, a defendant does not admit guilt but concedes that if the case were to go to trial, a jury would likely find him guilty.

The standard sentence was 4 to 4-1/2 years, and that's what prosecutors asked for.

But after the judge heard from the victim, Blakely's estranged wife, he hammered Blakely with 7-1/2 years.

The judge did so because he found that Blakely acted with "deliberate cruelty."

According to court documents, Blakely bound his wife with duct tape in October 1998 and forced her at knifepoint into a wooden box in his pickup. Next came threats with a shotgun. Finally, he told their 13-year-old son that his mom would be shot if he didn't follow them in another car.

The boy later escaped. Blakely drove his wife all the way from Grant County to Montana before he was arrested.

But no jury heard those facts, so they weren't proven beyond a reasonable doubt as far as the Constitution is concerned.

In his opinion, Scalia said that Blakely was, in effect, sentenced for first-degree kidnapping after being convicted of second-degree kidnapping. Because of this, the majority said the defendant was denied a "fundamental constitutional right of jury trial." The court did not consider whether the punishment was too harsh, just whether the decision-making process was constitutional.

For an exceptional sentence to be imposed, according to the opinion, either a jury must decide whether there are aggravating factors that permit the sentence, or the defendant will have to admit to them in his plea bargain.

"My understanding is until the Legislature steps in and puts a new and constitutional system in place for finding aggravating facts, the longest sentence any defendant can get is the top of the standard range," Fisher said. "The new system would allow him to challenge the fact in front of a jury instead of leaving it up to the judge."

John Junker, a University of Washington law professor, said he thinks the changes will be made.

"The Legislature has never been very unwilling to accommodate the prosecutors," he said.

And he doesn't think it will be too difficult to force a defendant to admit to aggravating factors if he wants to make a plea bargain.

And as for Blakely's sentence, "if the jury had heard what the judge heard," they would likely have come down the same way the judge did, Junker said.

Roe, on the other hand, doesn't think juries are equipped to make these kinds of decisions. "Now we will ask jurors, many who are serving on their one and only case, to find whether cases are exceptional," he said.

A Retroactive Ruling?

Opinions are mixed on whether this decision will apply retroactively to offenders who have already been sentenced.

Fisher and Junker say there's a good argument that it should apply to cases decided since June 2000, when a related ruling came down.

But Dan Donohoe, of the King County prosecutor's office, said "we are optimistic" that it won't be applied retroactively.

Scalia was joined in the majority by justices John Paul Stevens, David Souter, Clarence Thomas and Ruth Bader Ginsburg. That majority includes two of the court's most liberal members, Stevens and Ginsburg, and two of the most conservative, Scalia and Thomas.

On the other side were conservative Chief Justice William Rehnquist, moderate conservatives Sandra Day O'Connor and Anthony Kennedy, and relative liberal Stephen Breyer.

Material from Times reporter Jennifer Sullivan, the Washington Post and The Associated Press was included in this report.


Rancher Ralph Blakely, then 62, abducted his estranged wife and their son Oct. 26, 1998, in Warden, Grant County. He packed Yolanda Blakely, 42, into a wooden box.

The couple's son, then 13, said truckers at a gas station intervened on his behalf and his father drove off with his wife in the box.

He was arrested two days later near Three Forks, Mont. Yolanda Blakely had been injured slightly; her hands and mouth had been bound.

Ralph Blakely entered an Alford plea to reduced charges of second-degree kidnapping and second-degree assault.

The judge, noting especially brutal aspects of the crime, sentenced Blakely to 7 1/2 years in prison.

That "exceptional" term is less than the maximum called for by the state's kidnapping law, but more than the "standard" maximum prescribed by a state sentencing-guideline law.

Blakely argued that the question of enhancing his sentence beyond the guidelines should have been put to a jury.

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