Basics of Blakely v. Washington By Chuck Armsbury, November Coalition editor

"Common sense would dictate retroactivity would have to reach back to the Sentencing Reform Act of 1984, and the implementation of the U.S. Sentencing Guidelines in 1987. Yet, if the Guidelines are unconstitutional today in Blakely, back through Apprendi, and then back to their inception, then is not the entire chain of laws unconstitutional?"

By a 5-4 vote, U.S. Supreme Court justices on June 24, 2004 declared support for Sixth Amendment principles and renewed hope for thousands of U.S. prisoners. In Blakely v. Washington, S.Ct. 2004 WL 1402697, the majority made clear that any factor which increases a prisoner's sentence must be determined by a jury.

The only exceptions are, one, if prior convictions are the basis for the increased sentence and, two, if the jury actually considered and directly made findings as to the facts leading to the enhanced sentence.

For federal and state prisoners who have gone to trial and received anything except the absolute minimum sentence, the Blakely ruling means, very likely, that they must be resentenced to the lowest possible term. In the opinion of several prominent defense attorneys, Blakely probably requires resentencing for a majority of prisoners.

If someone has pled guilty, the question is open and difficult. But some attorneys argue for defendants' right to know that a waiver of a jury trial applied not only to the elements of the crime, but to the sentencing elements as well. Expect much litigation to continue on this question.

Blakely closes the circle that started with Apprendi v. New Jersey, 530 U.S. 466 (U.S.N.J. Jun 26, 2000). The ruling in Apprendi stated plainly that "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."

This rule writes attorney Daniel Horowitz, "reflects two longstanding tenets of common-law criminal jurisprudence: that the 'truth of every accusation' against a defendant should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbors. This is quite clear. The judge can't make factual findings about what the person did. If the jury didn't make the finding, the judge can't make the finding."

Blakely is very important because "it extends the Apprendi rationale from facts that increase a statutory maximum to all facts that increase a determined sentencing guideline. Stated differently, the decision expanded Apprendi from the limited pool of cases where the statutory maximum is affected, to the near-limitless universe where higher guideline sentences come into play by virtue of relevant conduct. It appears that this holding tolls the death knell of the federal sentencing guidelines," wrote Steven G. Kalar, Jane L. McClellan, and Jon Sand for The Champion, August 2004, page 10.

Justice Kennedy, interestingly, is one of the four Supreme dissenters on June 24th who lament the breakdown between the Judicial and Legislative branches that he sees in this decision. Despite universal acknowledgement of federal prosecutors' overwhelming authority in criminal cases, Kennedy attacked the draconian federal sentencing scheme in a well-publicized speech before the American Bar Association earlier in the year, and called for reforms.

"The vaunted judicial-legislative collaboration Kennedy asks for in his dissent has, in practice, been one-sided at best, as illustrated by the Feeney Amendment and the PROTECT Act - sentencing legislation openly despised by the judiciary. Contrary to Justice Kennedy's optimistic characterization, Congress and legislatures have turned a deaf ear to many reforms, and have increasingly ratcheted up the sentences," wrote Kalar, et al.

National Association of Criminal Defense Lawyers's president Barry Scheck wrote December 7th in a Washington Post article, "In my lifetime I have seen hundreds of wrongfully convicted persons freed from prisons and death rows. I hope to see the unjustly imprisoned allowed back into society. At a minimum, we can stop the madness of mandatory minimum sentencing."

Scheck boldly predicts that the 109th Congress will take responsibility in its next session, starting in January 2005, to evaluate and probably abandon the mindless sentencing-guideline philosophy and laws in vogue over the last 20 years. "There are signs that the Supreme Court will invalidate, in some fashion, the federal sentencing guidelines. The pending cases are United States v. Booker and United States v. Fanfan, and it is likely that the court will hold the guidelines unconstitutional because they permit judges, instead of juries, to embellish sentences," wrote Scheck.

Here are some specific examples of how Blakely works, according to attorney Horowitz from his website:

"A person is convicted of selling a large quantity of narcotics. Under the federal rules the weight of the drugs is the main factor in setting the punishment. There is a chart that lists the weights of various types of drugs and assigns a corresponding offense level. The higher weight, the higher the offense level, the higher the penalty."

"So if a person sold 4 kilograms of cocaine, he is at a level 30. That is simple mathematics. Under Apprendi ONLY THE JURY CAN FIND THE WEIGHT. However, prosecutors have been correcting this failure since the Apprendi case was decided, so only older cases need to be brought back for resentencing due to a failure of the jury to find the amount of drugs," Horowitz advises.

"Blakely goes a step further. All factors enhancing the sentence must be found by the jury."

The federal sentencing guidelines allow the judge to increase that level 30 based upon how the offense was committed. If the judge thinks that the person was a leader or organizer of the drug offense the level 30 gets increased by 4 and becomes a level 34."

"This is a major change. For a first time offender, a level 30 carries a sentence of 97-121 months in prison. For a first time offender, a level 34 carries a sentence of 151-188 months - about five extra years! If you were sentenced to those five extra years, put down this paper and do a celebration dance - Blakely is cutting five years from your sentence," concludes Horowitz on his website. But will the high court agree?

State prisoners could be equally helped by Blakely, a Washington State case in which the judge, after the jury's work, held his own hearing into what he thought was 'deliberate cruelty' by defendant Blakely. "This was held unconstitutional because the judge and not the jury made the call. The maximum sentence that the judge can impose is the highest sentence based upon what the jury found. Nothing that the judge finds by himself can be considered," says Horowitz.

While the scramble to interpret Blakely's application will continue through courtrooms for months ahead, some prominent defense attorneys, notably Horowitz, are speculating there'll be relief "for federal and state prisoners who have gone to trial and received anything except the absolute minimum sentence. This means that they will have to be resentenced to the lowest possible term." Thus, under the Blakely ruling, odds are good that a majority of prisoners will be re-sentenced.

Other changes to expect include "more protracted grand jury proceedings in which the prosecutors will be required to provide the grand jury with more substantial evidence to establish additional elements of proof which would enhance the sentence."

Other predictable trends to the future include a potentially significant increase in enforcement of a traditional obligation of prosecutors to provide evidence to defendants prior to trial. It's reasonable to expect "more cumbersome trials with the introduction of substantially more evidence on various issues in order for the jury to make the determinations that would enhance the sentence," wrote Horowitz. We'll likely see printed "a more elaborate jury verdict form which would more closely mirror the special interrogatories that are common in complex civil litigation."

Comments from prisoners include these from Lance Persson, "Blakely may not affect anyone sentenced before Apprendi v. NJ, or anyone who had exhausted their appeal processes before the same. In light of Schiro v. Summerlin, which the Supreme Court handed down on the same day as Blakely, I don't think retroactivity beyond Apprendi will be granted even if the Federal Guidelines are ruled as unconstitutional."

"Common sense," wrote Persson to November Coalition, "would dictate retroactivity would have to reach back to the Sentencing Reform Act of 1984, and the implementation of the U.S. Sentencing Guidelines in 1987. Yet, if the Guidelines are unconstitutional today in Blakely, back through Apprendi, and then back to their inception, then is not the entire chain of laws unconstitutional?"

Ohio law professor Douglas A. Berman tracks daily decisions of the US Supreme Court online from a website loaded with information and speculation about Blakely's future impact. Berman wrote on December 13th that there have now been 11 opinions issued by the Court, but nothing yet on Booker and Fanfan, the follow-up cases to Blakely.

Noting the numerous persons and institutions awaiting decisions in these cases, Berman speculates that "Chief Justice Rehnquist's illness is playing a role in the delay." Rehnquist is being treated for cancer. "Moreover," wrote Berman, "CJ Rehnquist's absence from the Court may mean that there is not a chief administrator pushing other Justices to complete their opinions."

It looks like we won't hear about Blakely's future application from the Supremes until late-January 2005. Why the continued delay? To get through holiday seasons? Expectations are high, and few in the legal profession want to continue the costs associated with continued delays.

Stay tuned for much more on Blakely in months ahead. Here at November Coalition we always hope for the best, but like Lance Persson, and many who serve long prison-sentences, we know the 'best' may not happen - and we won't get everything we want. But sometimes we get what we need, and Blakely, nonetheless, is a valuable watershed case to inspire hope and legal options for prisoners and their loved ones.

For continuing coverage of Blakely follow-up cases and rulings online, keep informed daily at www.november.org.

Sources: Numerous law firms offer information and analysis about Blakely v. Washington on the Internet, interpreting the case from many angles for the imprisoned. These two sites: www.oaklandcriminaldefense.com and www.nacdl.org/public.nsf/championarticles were easily found while searching online and are the source for much of the above discussion. Professor Douglas A. Berman's online research and commentary is www.sentencing.typepad.com/sentencing_law_and_policy.

Thoughtful analysis received from prisoners, such as Lance Persson, is our consistent bottoms-up source for answers to penetrating questions about Blakely and other significant rulings.