Reforming the U.S. Sentencing Guidelines after Blakely

Abstract:     
In Blakely v. Washington, the Supreme Court all but held that juries must find beyond a reasonable doubt facts that raise sentences under sentencing guidelines. This essay, originally prepared as testimony before the United States Sentencing Commission, explores the legal and political hurdles to reforming the federal Sentencing Guidelines. While removing all maxima from the existing guidelines (the so-called Bowman proposal) may work as an interim solution, it also may distort plea-bargaining behavior. Another proposal, to invert the Guidelines by rephrasing all aggravators as mitigators, is too gimmicky and would likely be held unconstitutional. The best long-term solution is to simplify and streamline the Guidelines down to a handful of the most commonly applied enhancements and to broaden sentencing ranges, to allow moderately more flexibility while retaining the Guidelines' binding force. This solution would track the best features of successful state guideline systems. The Commission should add more procedural protections to sentencing and limit but not abolish the relevant-conduct rules. These measures would best restore the balance of plea-bargaining power, empowering appellate and sentencing judges to check unilateral prosecutorial decisions.

Number of Pages in PDF File: 13

Keywords: Apprendi, Blakely, determinate sentencing, sentencing guidelines, criminal procedure, sentencing

JEL Classification: K14, K40

working papers series