Train Wreck? Or Can the Federal Sentencing System Be Saved? A Plea for Rapid Reversal of Blakely V. Washington

Abstract

On June 24, 2004, the U.S. Supreme Court decided Blakely v. Washington, the most significant criminal procedure case in the past century in terms of its immediate effects, regardless of whether in the end it proves to have any enduring legacy. In Blakely, the Court found the Washington State Sentencing Guidelines unconstitutional, placed the validity of the Federal Sentencing Guidelines in the gravest doubt, and cast a shadow of deep uncertainty over many state sentencing systems and the entire twenty-five-year sentencing reform movement. This Article argues that the Blakely decision was a mistake, and that the Court should recognize its mistake and take the earliest opportunity to reverse itself.

The Article is addressed primarily, though by no means exclusively, to the federal implications of Blakely and makes six basic points:

First, Blakely really has created a ghastly mess, bringing the federal criminal justice system to a virtual halt and a putting a number of state systems in disarray.

Second, if the Court extends Blakely to the Federal Sentencing Guidelines, the chaos will not abate; instead, the field of struggle will simply widen to include Congress.

Third, the unprecedented disruption that Blakely has caused, and that a ratifying successor would extend, cannot be justified as necessary to vindicate a transcendent constitutional principle because the principle on which Blakely rests is at best narrowly formalistic and at worst logically incoherent.

Fourth, because of the odd formalism of the Blakely rule, as written, it can be evaded by equally formalistic legislative responses. But if the Blakely rule were modified and extended to the degree necessary to make it logical and coherent, doing so would cripple structured sentencing in both federal and state courts.

Fifth, at least to an outside observer, it seems likely that the Blakely decision, whatever its stated doctrinal basis, was in some measure influenced by rising concern among judges about a federal sentencing system that in recent years has produced ever-harsher sentencing rules and an ever-increasing tilt of sentencing authority away from the judiciary and toward an alliance of Congress and the Justice Department. Yet paradoxically, virtually all of the likely reconfigurations of federal sentencing law in response to Blakely would do little or nothing to reduce sentence length and would decrease judicial sentencing power while increasing prosecutorial and congressional control.

Finally, in light of the doctrinal and practical difficulties with Blakely, the article suggests that the Court repudiate Blakely and pursue other more fruitful constitutional avenues to address the undoubted deficiencies in current federal and state sentencing practice.

Keywords: Sentencing, federal sentencing guidelines, Blakely v. Washington, criminal law

JEL Classification: K10, K14