Blakely and Trial Courts

A couple days ago Will Baude (of Crescat Sententia fame) authored an article over at TNR in which he posited the reason that Blakely has caught fire is because of the ideological mix in the lower courts:

The lower courts, after President Clinton's presidency, are now a mix of the mostly conservative judges appointed by Reagan and Bush I and the largely pragmatic liberals Clinton selected. Blakely resonated among the lower courts . . . in part because the ideologically mixed majority that decided it closely matched the ideological composition of the circuit courts that have started to implement it. That is, it requires a critical mass of judges sympathetic to the reasoning behind a High Court decision for any such ruling to catch fire in the lower courts. In Blakely, you have a majority that incorporated both ends of the Court's ideological spectrum--meaning that you also have a critical mass of lower court judges who are, for one reason or another, sympathetic to the ruling, and therefore interested in applying its logic to other cases.

Orin Kerr, now back at the Volokh Conspiracy, disagrees. He points out that if the hypothesis were true the judges would have acted previously under Apprendi and Ring; they did not.

What makes Blakely different? Blakely is the first Apprendi case to involve a sentencing scheme quite similar to the Federal Sentencing Guidelines. Regardless of their views, federal lower court judges can read Blakely and see that its reasoning places routine federal court sentencing practices in doubt. Whether they think Blakely is right or terribly wrong, it's a hard decision for a lower court judge to ignore.

Orin believes that the post-Blakely reaction is a triumph of legal reasoning over entrenched ideology.

JNV, also at the Conspiracy, agrees with Orin and offers evidence that ideology is not the root of the Blakely reaction:

Exhibit A . . . is Paul Cassell. As an academic, Cassell was an advocate of the sentencing guidelines, yet he was one of the first federal judges to find the federal sentencing guidelines unconstitutional under Blakely.

However, Spencer, at Mediocrity's Co-Pilot, is deeply suspicious of Judge Cassell's quick conversion.

Perhaps I'm alone in being overly suspicious about the rapid response of a Conservative judge like Cassell -- but, given the fact that SCOTUS made a point of avoiding a ruling on the Federal statute, it seems odd that a judge in disagreement with the ruling would act so swiftly & thoroughly to maximize the ruling's effect. Unless, of course, his very point was to send a message to SCOTUS.

[comment] I think the truth is somewhere in the middle of all of that. Orin is right that the implimentation of Blakely after the courts had rejected claim after claim rising out of Apprendi et al. is a triumph of legal reasoning. After Blakely even the most obtuse of judges could not ignore the logic of Apprendi. Everyone, no matter their philosophical bent, knew that upward departures based on things like unproven "relevant conduct" etc. were no longer allowed. The question then became what to do.

It's at this point that ideology came into play. Some judges showed admirable restraint, attempting to interpret the decision narrowly and either severed the upward departures or required a sentencing jury. However, a number of judges have stepped beyond this. Some have ruled that the guidelines are, in their entirety, now merely advisory. You can come to this conclusion if you don't believe the guidelines severable or the courts to have the power to empanel sentencing juries. Still, too many courts seem just a little too eager to stretch past the other two possibilities in order to reach this conclusion. Mind you, I find the federal guidelines repugnant and would prefer this solution myself; I just don't think it is the most valid of options (see here).

The worst of the worst have been those courts which impute upon the prosecution a "right" to the upward departures (phrased as fairness). Following this line of reasoning when sentencing does not have upward departures the guidelines are constitutional. However, when the sentence would have upward departures it is unfair to deny those to the prosecution. Therefore, in those applications only the guidelines are unseverable and unconstitutional. Thus the upward barrier is removed and the judge is allowed to sentence using the guidelines - with the upward departure included - as a "recommendation."

Personally, I don't break this down as liberal/conservative. I think a lot of conservative judges can (and probably will) come to one of the first three conclusions. The fourth is nothing more than a pro-prosecution position. In fact, it would be pretty easy to characterize that as legislating from the bench; a total rewrite of the law.

I figure the S.Ct. is going to have to hear this in the next term. It will be interesting to see which theory it adopts.

[addendum] All Deliberate Speed also has an excellent post which gives an example of why pre-Blakely sentencing was so wrong.