Mandatory Sentencing Guidelines by Any Other Name: When 'Indeterminate Structured Sentencing' Violates Blakely V. Washington
Bradley R. Hall
Federal Defender Office, Detroit
July 6, 2009
Drake Law Review, Vol. 57, No. 3, p. 643, 2009
American Judicature Society Symposium, Forthcoming
While striking down Washington's mandatory sentencing guidelines scheme in Blakely v. Washington, the Supreme Court made clear that '[w]hen a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment . . .’ and the judge exceeds his proper authority.' Conversely, the Court approved of sentencing schemes that do not employ mandatory sentencing guidelines based on judicial fact-finding, but instead vest judges with full sentencing authority at the moment of conviction, i.e., schemes in which judge-found facts are not 'essential to the punishment.'
The Court imprecisely referred to these unproblematic schemes, however, as 'indeterminate,' apparently borrowing from another characteristic common to the nonguideline sentencing schemes that were widespread prior to the 1980s: the idea that a defendant’s actual time in custody is not “determined” solely by the sentencing judge, but depends in part upon nonjudicial factors, typically an executive branch parole board.
A careful examination of its earlier precedents reveals that the Supreme Court has never been concerned with the existence of a parole board when it has used the term 'indeterminate.' Rather, the Court’s sole concern has been whether a sentencing scheme employs mandatory sentencing guidelines that narrow a judge’s sentencing discretion.
Buoyed by the Supreme Court’s acceptance of 'indeterminate sentencing' in an otherwise confusing post-Blakely landscape, but without the least bit of thought as to what the Court actually meant by the term, some state courts have found that any sentencing regime employing a parole board, and therefore meeting the dictionary definition of 'indeterminate,' withstands constitutional scrutiny. The Michigan and Pennsylvania courts have led the way. Those states employ what Steven Chanenson has aptly called 'Indeterminate Structured Sentencing' (ISS) schemes because they include both a parole component (they are 'indeterminate') and a sentencing guidelines component (they are 'structured').
In upholding these schemes, the state courts’ primary concern has been the 'indeterminate' side of this equation, but this Article argues that it is the form of the 'structure,' rather than the presence of a parole board, that governs the Blakely analysis. Specifically, when indeterminate (parolable) sentencing involves mandatory sentencing guidelines, as in Michigan, it runs afoul of Blakely.
Although a sentence in Michigan takes the form of a parolable range, leaving an additional layer of discretion to a parole board, the range often increases in severity based on judge-found facts. Thus, judges are regularly required to 'inflict punishment that the jury’s verdict alone does not allow . . . .'
Number of Pages in PDF File: 50
Keywords: Sentencing, Indeterminate, Blakely, Apprendi, Indeterminate Structured Sentencing, ISS, Michigan, Pennsylvania,
Date posted: July 7, 2009