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July 16, 2004 - (US Web)

Supreme Court Cleanup in Aisle 4

Blakely Is Too Big And Messy To Ignore

By Douglas Berman

"Ho Hum," says Dahlia Lithwick in her piece on the panic over Blakely v. Washington. Unlike the Washington Post [article], she argues it's no big deal that the Supreme Court's decision in Blakely -- which seems to hold that the Sixth Amendment requires juries, and not judges, to find all of the facts which can increase a defendant's sentence -- has created a (four-way) split among the federal circuit courts in less than three weeks. "We live with circuit splits all the time," she says, arguing that there is no good reason for members of the Supreme Court to pack up their beach chairs and get back to work.

Though I have nothing against the justices getting an even tan, smart folks like Lithwick need to understand what's really going on: Blakely is the biggest criminal justice decision not just of this past term, not just of this decade, not just of the Rehnquist Court, but perhaps in the history of the Supreme Court. And, because Justice Antonin Scalia's opinion for the Blakely majority reads more like a Slate column than a serious effort to articulate a fundamental constitutional principle in a fundamentally important case, the Blakely decision makes an even bigger mess than the captain of the Exxon Valdez did. The Washington Post -- which is really only echoing astounding pleas being made by dozens of lower federal court judges in written opinions -- is absolutely right to say it is time for the Supreme Court to pick up its mop and start the cleanup efforts.

Let me explain. Consider the handful of famous modern Supreme Court cases that have shaped or reshaped the criminal justice system, cases whose names are familiar to all criminal lawyers and law students (at least the good ones). Consider Gideon v. Wainwright, which guaranteed certain defendants a right to a lawyer; and Terry v. Ohio, which defined police authority to stop and frisk suspects; and especially Miranda v. Arizona, which established rules for police interrogation. Well, Blakely is bigger than all of them. By suggesting that juries now have to find all the facts that can increase a defendant's sentence, the Blakely decision disrupts nearly every (seemingly established) aspect of current sentencing law and practice. And consequently, the Blakely decision potentially impacts every single criminal case now ongoing in the country (and in the future), and it may even require the reconsideration of hundreds of thousands of past sentences.

Those of you following the Martha Stewart saga -- and who isn't? -- may have noticed that the Blakely decision has already received its first 15 minutes of fame. Martha Stewart's lawyers argued -- unsuccessfully for now -- that the case precluded the application of the federal sentencing guidelines for her. That Martha could argue that Blakely impacted her sentencing, and because the case is allowing her to be free during appeal, provides a hint both into why Blakely is so big and why everything is so messy right now.

It's true that Gideon, Terry, and Miranda all redefined how police conduct investigations and courts conduct trials; but -- both doctrinally and practically -- these cases had and have their limits. Gideon was big news for holding that states had to provide a lawyer to indigent defendants in felony cases even if they could not afford one. But long before Gideon, the Supreme Court had already held that criminal defendants in federal courts had a right to an appointed lawyer, as did state defendants in cases with "special circumstances." And even before Gideon, if you could afford a lawyer, you always had an absolute right to her assistance at trial. The Terry and Miranda stories are similar -- both significantly changed the legalities and practicalities of police-citizen encounters. But many crimes are investigated and prosecuted without use of the "stop and frisk" procedures at issue in Terry or without the sort of intensive interrogation at issue in Miranda. In addition, subsequent cases have held that police can still approach and question individuals in various ways and various settings without implicating the Terry and Miranda rules.

In short, not every criminal case is affected by Gideon, Terry, and Miranda. But every single case in which a defendant is convicted of a crime and subject to punishment is potentially impacted by Blakely. Indeed, it's actually more accurate to say that every single case in which a defendant is even charged with a crime is potentially impacted by Blakely because prosecutors always have an eye on sentencing when they make decisions about which crimes to charge and how to conduct plea negotiations.

Consider any ongoing high-profile criminal case. Martha Stewart is already living Blakely, and the criminal prosecutions and sentencings of other corporate scoundrels are similarly going to have to be rethought in its light. (Insiders realized that the recent indictment of Enron CEO Ken Lay was "Blakely-ized." For non-lawyers, think of "supersizing": The prosecutors now had to pack a whole plateful of additional facts into the indictment just to make sure Blakely issues would not disrupt Lay's sentencing if he is convicted.)

How 'bout the Kobe Bryant case in Colorado? As this Denver Post article blares in its headline, the Blakely "Ruling Could Nullify Sentences in Colorado." How 'bout Michael Jackson and Scott Peterson in California? As this Web site from the First District Appellate Project in California highlights, the Supreme Court of California has already accepted review of a case to try to figure out what Blakely means for California sentencing.

Blakely might not ultimately be litigated in all of these high-profile cases. But because the decision is potentially so sweeping, it is hard right now to say confidently that any criminal case -- no matter how big or how small, no matter if it is in federal court or state court -- will escape being affected by Blakely.

"OK," you say, "I get that Blakely is a big case, but exactly what does it mean for these cases and all the others? Will thousands of defendants have to be resentenced? Will Congress and state legislatures have to radically rewrite existing sentencing laws?" Fortunately, these are very easy questions to answer, at least right now:

"Duh ... uh ... I'm not really sure," is the best I can do right now because Justice Scalia's opinion in Blakely is both majestic and mysterious, historic and hysterical, stunning and stupefying. It is a great read but often seems more intent on teasing the dissenters than on clearly defining defendants' Sixth Amendment rights.

Lithwick says the court showed "impressive restraint" by not addressing what its holding meant for the federal sentencing guidelines. But the court's meager assertion that the Blakely case was not about the federal guidelines was the jurisprudential equivalent of tying up a rabid pit bull with a dental-floss leash. The justices in the Blakely majority had to know the decision would immediately start to chew through both state and federal sentencing systems -- Justices Sandra Day O'Connor and Stephen Breyer screamed this very point in their dissents.

Lithwick also expects the uncertainty engendered by Blakely to "launch a crucial national dialogue" about the rights at issue in Blakely. Unfortunately, lower-court judges, with many ongoing criminal trials and pending sentencing hearings, cannot put the administration of justice on hold while Ted Koppel arranges a town meeting so we can all discuss why juries are important. Moreover, the Blakely decision has not only destroyed settled sentencing doctrines, but also opened up huge new questions. Lower courts and practitioners now operate with a reasonable fear that the Blakely bull, which just ran through the china shop of sentencing law, could ultimately turn around and take another pass through the shop while everyone is trying to pick up those pieces of sentencing guideline systems already smashed to bits.

Of course, recalling the old aphorism that "Bad cases make bad law," Lithwick is right that the Supreme Court needs to carefully select which case it will use to clarify what Blakely means. But, in part because other judges do not have the luxury of taking July off, there are already dozens of lower-court rulings for the Supreme Court to consider. Looking for the right case is no longer a viable excuse for continued fiddling while Rome burns.

Miranda was decided 40 years ago, and the high court still needs to consider two or three new cases each term to help define its meaning and contours. It is surely going to take decades to sort out what exactly Blakely means, and there are going to be a lot of messy periods along the way. There is no time like the present to start the serious cleanup effort. And because no court has a mop the size of the Supreme Court, its time for the justices to trade their bathing suits for overalls and get back to work.

Douglas A. Berman is an associate professor of law at the Moritz College of Law and a sentencing law expert. He operates the Sentencing Law and Policy Blog, tracking Blakely cleanup efforts around the country.

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