Criminal Justice Section  


Criminal Justice Magazine
Fall 2004
Volume 19 Number 3

Chair's Report to Members

Blakely May Doom Sentencing Middle Ground

By Catherine L. Anderson


Hon. Catherine L. Anderson is the chair of the Criminal Justice Section and a district court judge in Minneapolis, Minnesota.

A central tenet of the rule of law is the notion that the law ought to be knowable by those subject to it so that they can regulate their conduct accordingly. In that vein, Lon L. Fuller argued in his influential discourse on the subject that the rule of law requires publicly promulgated rules laid down in advance. (See Richard H. Fallon, Jr., “The Rule of Law” As a Concept in Constitutional Discourse, 97 COLUM. L. REV. 1, 2 (1997) (citing LON L. FULLER, THE MORALITY OF LAW 42, 44 (rev. ed. 1964)).) Justice Scalia makes an illustrative case for the requirement of a knowable law in recalling the lore that “one of emperor Nero’s nasty practices was to post his edicts high on the columns so that they would be harder to read and easier to transgress.” (Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1179 (Fall 1989).)
In requiring that the law be knowable in advance of the subject conduct, the rule of law is at odds with the exercise of judicial discretion because the exercise of judicial discretion implies that the applicable law is being prescribed after the subject conduct has already occurred. However, even staunch proponents of the rule of law will concede that the exercise of judicial discretion offers a form of particularized justice that is unattainable under a finite number of inflexible rules. (See id. at 1177) (noting “every rule of law has a few corners that do not quite fit”.)
The rule of law and its requirement of a knowable law is thus in constant tension with the exercise of judicial discretion and its promise of particularized justice. This tension underlies virtually every aspect of our legal system, but it has added prominence for criminal law practitioners in the wake of the Supreme Court’s decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), a decision that may ultimately compel wholesale revision of sentencing laws across the country and leave legislators with a difficult choice between a knowable law and particularized justice.
Prior to the enactment of the Sentencing Reform Act, federal court judges exercised “virtually unlimited discretion” in sentencing a convicted defendant within the range provided by the statutory maximum and minimum penalties. (See Frank O. Bowman, The Quality of Mercy Must Be Restrained, and Other Lessons in Learning to Love the Federal Sentencing Guidelines, 1996 WIS. L. REV. 679, 682 (1996).) Such a system is sometimes referred to as indeterminate sentencing. (Id.)
An indeterminate sentencing system offends the rule of law’s requirement of a knowable law because even though the actor may know that the law prohibits certain conduct, he or she cannot know the penalty for the prohibited conduct with any degree of certainty, and it is the penalty that gives life to the prohibition. Indeed, the extent of the penalty is integral to the prohibition’s essential function as a deterrent.
The upside of indeterminate sentencing is the promise of particularized justice that arises from the exercise of judicial discretion. Unfortunately, where judicial discretion is unrestrained, the promise of particularized justice walks hand in hand with the peril of arbitrary or invidious discrimination, and it is the latter that has come to characterize the indeterminate sentencing system previously in place. For an anecdotal example of arbitrary discrimination, there is the popular myth of sentencing disparities based on nothing more than what the judge had to eat for breakfast. (See Blakely, 124 S. Ct. at 2554 (Breyer, J., dissenting).) Regarding invidious discrimination, there is evidence indicating that, under the erstwhile indeterminate sentencing system, some sentencing disparities were based on constitutionally impermissible factors such as race and gender. (See Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 HOFSTRA L. REV. 1, 5 (1988).)
At the opposite end of the spectrum from indeterminate sentencing are discretion-preclusive sentencing innovations such as mandatory minimum sentences and “three strikes” laws. By precluding the exercise of judicial discretion, such sentencing innovations deny all opportunity for particularized justice and have been soundly criticized on that basis. At the ABA’s Annual Meeting in 2003, Justice Kennedy noted that he could “accept neither the necessity nor the wisdom of federal mandatory minimum sentences” and expressed his view that “a transfer of sentencing discretion from a judge to an Assistant U.S. Attorney, often not much older than the defendant, is misguided.” (Anthony M. Kennedy, Address at the American Bar Association Annual Meeting (Aug. 9, 2003).) The danger of eliminating judicial discretion in sentencing is perhaps epitomized by drastic application of California’s “three strikes” law, including the notorious instance of the defendant sentenced to life imprisonment for stealing a pair of pants. (See Alex Ricciardulli, The Broken Safety Valve: Judicial
Discretion’s Failure to Ameliorate Punishment Under California’s Three Strikes Law, 41 DUQ. L. REV. 1, 2 (2002).)
Between the freewheeling discretion of indeterminate sentencing and the discretion-preclusive approach of mandatory minimums lies a middle ground: namely, sentencing guidelines such as the United States Sentencing Guidelines. Compared with indeterminate sentencing, the guidelines satisfy the rule of law’s requirement that the law be knowable because “the level of predictability in sentencing under the Guidelines is indisputably greater than it was before.” (Bowman, supra, at 717.) At the same time, the guidelines allow for the exercise of judicial discretion and thereby accommodate particularized justice since departure from the guidelines is authorized by law. (See 18 U.S.C. § 3553(b); see also Koon v. U.S., 116 S. Ct. 2035, 2044 (1996) (noting that Congress “[a]cknowledg[ed] the wisdom, even the necessity, of sentencing procedures that take into account individual circumstances”).)
Alas, the Court’s decision in Blakely may have sounded the death knell for the guidelines and the middle ground they offer. In her dissenting opinion, Justice O’Connor cautions that the Court’s decision “casts constitutional doubt over” both the federal guidelines and the sentencing guidelines of the several states. (Blakely, 124 S. Ct. at 2548–50.) As it stands, in response to Blakely, many federal courts have already ruled that sentencing enhancements under the guidelines run afoul of the Sixth Amendment. (See, e.g., U.S. v. Mueffleman, No. 01-CR-10387-NG, slip op. at 24 (D. Mass July 26, 2004) (referring to “the legions of courts that have ruled that Blakely applies to the Sentencing Guidelines”).)
If indeed Blakely spells doom for sentencing guidelines, the middle ground they offer will likewise be lost, forcing legislators to choose between indeterminate sentencing and discretion-preclusive sentencing. More generally, legislators will be left with a difficult choice between two competing values: (1) the rule of law with its requirement of a knowable law and the resultant uniformity in sentencing; or (2) the opportunity for particularized justice that arises from the exercise of judicial discretion.
One possible adaptation to any earthshaking extension of the Blakely decision would be an indeterminate sentencing system that incorporates advisory sentencing considerations while requiring the judge to provide an explicit basis for a sentencing decision as recommended by the ABA’s Kennedy Commission, established after the 2003 Annual Meeting to evaluate the guidelines. An indeterminate sentencing system incorporating purely advisory sentencing considerations would conform to the rule set forth in Blakely as well as in Apprendi v. New Jersey, 530 U.S. 466 (2000), because the underlying statute would authorize the judge to impose the maximum sentence without any additional findings of fact. Requiring the judge to provide an explicit basis for a decision would preserve the openness and transparency of the sentencing process, thereby mitigating the detriment inherent in an unpredictable and unknowable sentencing law. The requirement would also enable meaningful appellate review of sentencing decisions, thus guarding against the peril of arbitrary or invidious discrimination while still maintaining the promise of particularized justice. This approach would facilitate the guided decision making that sentencing guidelines afford without offending the Sixth Amendment right enunciated in Apprendi and Blakely. However, that right remains irreconcilable with sentence enhancement statutes dependent on judicial fact finding.
Fortunately, the thoughtful and incisive members of the Criminal Justice Section and its various committees will have ample opportunity in the coming year to consider and confer upon the implications of the Blakely decision and the host of issues it raises. As I begin my term as chair of the ABA’s Criminal Justice Section, I anticipate that these issues and their ultimate impact on the sanctity of the rule of law will predominate much of criminal justice discourse for the immediate future. The Criminal Justice Section has already played a key role in the Kennedy Commission’s important work on sentencing issues, and I am hopeful that we will provide similar leadership in resolving the Blakely dilemma.

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