Blakely and Federal Sentencing Feeneyizing the Upward Departures

OMG . . . OMG . . . OMG . . . No More Upward Departures

When I screw up an analysis I really screw it up. In the immediate post below I stated that I didn't think that Blakely had much to do with the Massachusetts opinion and proceeded to analyze the opinion as either being correct or incorrect based up whether it could be characterized as changing a maximum allowable sentence or merely changing the minimum allowable sentence. I was wrong; Blakely is determinative.

How could I be wrong, you ask? Well, gentle readers, my only excuse is that I read the opinion at about 11 p.m. after several mind-numbing hours of traveling back and forth to some jail in the middle of nowhere in order to visit a federal client. I was tired and I read it fast. But today I was taking a break for lunch and I started to reread it with my brain half-engaged and OMG!!!


So here's my analysis of Blakely:

Legal Situation: Blakely pleads guilty to a charge for which the Washington State Legislature has set a 10 year maximum punishment. However, the Legislature has also enacted sentencing guidelines which set forth a range of punishment. The judge departs upward from these guidelines by finding an aggravating factor which had not been stipulated to by the Defendant and was not necessary for the conviction. A finding that the aggravating factor exists moved the sentencing guidelines upward but they were still within the ten year maximum.

Finding of the U.S. Supreme Court:

The maximum sentence is that which is set out by the guidelines not that which is stated to be the maximum under the actual statute for the crime.

Going back to Apprendi the Court stands by the principle that outside of the prior record the judge cannot find any factor which will increase a maximum sentence. Such factors can only be stipulated by the Defendant or found by the jury.

[T]he relevant "statutory maximum" is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.

Since the judge could not impose the sentence he did solely from the stipulations in the guilty plea the increased sentence is a violation of the Defendant's right to have all facts determinative of the maximum sentence decided by the jury.

The State seems to have argued along the lines of what I hypothesized while discussing the Massachusetts case below: that the fact upward departures occurred indicates that the guidelines actually only set mandatory minimums. The Court rejects this out of hand. As long as there is a range and the maximum changes due to factors neither stipulated to nor found by a jury the minimum is irrelevant.

Comment:

Despite the gnashing of teeth and wailing on one side and the exuberant jubilance on the other this is not the death knell for the federal sentencing guidelines. It is a blow against uncertainty in the maximum sentence. I foresee three possible outcomes:

First, the guidelines could be revamped so that all they establish are mandatory minimums. I'm not an expert on the Sentencing Commission but hopefully it would not be able to undertake such a massive change without Congress being required to vote on it. I am doubtful that this could be gotten through both houses of Congress (at least if it's not attached as an amendment to the "Allow Motherless Orphan Babies to Have Milk" bill).

Second, it could lead to bifurcated hearings. The problem here is how unwieldy this would be in practice; with the guidelines as they are you might have to schedule longer for the sentencing hearing than the trial. It would also mean that prosecutors would have to be much more detailed in their indictment so that each and every element of the maximum sentence was included and could be proven. This system is doubtful because of its difficulty. One advantage of it is that it would probably do away with the one guideline abuse that bothers me the most: getting extra points for obstruction when you exercise your right to testify at your trial. Prosecutors cannot indict a future possibility and thus could not prove this unalleged element of the maximum sentence.

Third, is to adopt the method which the judge in Massachusetts chose to use (if you see that judge buying a lottery ticket make sure you listen for the number - he shows signs of precognition). Judges shall only sentence in the range determined by the base number as effected by the Defendant's prior record. This is what I foresee happening.

This option is what I meant by Feeneyizing upward departures. As we all know, downward departures have become (under Feeney) almost impossible to obtain. This ruling makes upward departures impossible to obtain. It makes the guidelines far more predictable and standardized.

Probable Effect: The second and third options above are not mutually exclusive. When the US Attorney really, really wants to get someone he could jump through all the hoops and bring a complex and fully laid out indictment alleging all the facts for the maximum sentence he wishes to have imposed. He would then ask for a bifurcated trial in order to prove all the allegations. The trial could go on forever but in the end he could get the massive sentence he desires.

More likely, under the third option prosecutors will go back to bringing multiple charges and proving them in order to get all the relevant factors which will boost the sentencing range (newer prosecutors seem to tend to only bring the conspiracy charge nowadays). They will also require a Defendant who enters a plea agreement or who wishes to get the third point of downward departure to stipulate to the facts as the prosecutor wants them presented to the judge.


Well, I could probably put much more in but poker calls . . .