High Court Decision Sows Confusion on Sentencing Rules

The federal court system has been plunged into turmoil in the wake of a Supreme Court ruling that casts doubt on the constitutionality of U.S. sentencing guidelines, and prosecutors and defense lawyers say that tens of thousands of ongoing criminal cases may be affected.

The court, in a 5 to 4 decision, ruled June 24 that Washington state's sentencing guidelines were unconstitutional because they allowed a judge, rather than a jury, to consider factors that increase a defendant's criminal penalty.

At least a half-dozen U.S. District Court judges have since ruled that because Washington state's system resembles the federal one, the high court's decision in Blakely v. Washington makes part or all of the U.S. sentencing guidelines unconstitutional.

The issue has already produced two seemingly contradictory rulings at the appellate level. The U.S. Court of Appeals for the 7th Circuit issued a 2 to 1 decision last week declaring part of the federal sentencing system unconstitutional, and yesterday morning, the 5th Circuit reached the opposite conclusion. Hours later, judges in the 2nd Circuit took the unusual step of issuing a set of three questions for the Supreme Court and urging it to "adjudicate promptly the threshold issue of whether Blakely applies to the federal sentencing guidelines."

Also yesterday, a federal judge in Brooklyn, N.Y., scheduled what may be the first federal jury trial convened solely to decide on a defendant's sentence. The Senate Judiciary Committee is to hold a hearing today to debate possible action by Congress.

The Justice Department has responded with a new set of procedures aimed at navigating the shifting legal landscape, including orders to aggressively pursue "Blakely waivers" under which defendants agree, as part of a plea bargain, not to use Blakely to challenge their sentences.

U.S. District Judge Leonie M. Brinkema in Alexandria has already informed prosecutors and the public defender's office, however, that she will not accept such waivers until there is guidance from a higher court on their constitutionality.

In many districts, plea bargains have nearly ended. Prosecutors across the country have rushed to add aggravating factors to be considered at sentencing to all pending and new indictments, including that issued last week against former Enron Corp. chairman Kenneth L. Lay. Defense attorneys, meanwhile, are flooding U.S. district courts with requests for new and reduced sentences.

"Blakely is like an earthquake," said Douglas Berman, an Ohio State University law professor. "Twenty years of investment in structured sentencing has essentially come crashing down. . . . They're trying to figure out which parts have come down and how to put them back up again."

Steven Chanenson, a Villanova University law professor and former federal prosecutor, called it "a big mess that needs to be resolved. . . . It injects an enormous amount of uncertainty into a system that, whether you liked it or didn't, was relatively stable and predictable."

Under federal sentencing guidelines developed over the last two decades, a complicated, points-based system requires a judge to set a sentence based on "aggravating" factors not considered by a jury during a trial, such as whether a gun was used during a crime or whether the defendant played a leadership role in a criminal organization. Nearly all federal prosecutions include such factors, but Blakely calls into doubt that regimen by mandating that a jury must decide the facts of any issues that would increase a defendant's statutory sentence.

The ruling's effect on federal sentences is already palpable. Dwight Watson, the North Carolina farmer who drove his tractor onto the Mall and threatened to set off a bomb in 2003, was one of the first beneficiaries. He was sentenced to time already served and ordered freed because a judge decided he could not add extra jail time under Blakely.

Other fortunate defendants have included a drug dealer in Maine, whose prison time was cut from 19 years to six. In West Virginia, U.S. District Judge Joseph R. Goodwin ruled that Blakely required him to knock 19 years off a 20-year prison sentence for Ronald Shamblin, who had pleaded guilty to methamphetamine charges. The judge said neither alternative was just.

"Shamblin's case illustrates the upheaval that Blakely will cause in federal courts, at least for a time," Goodwin wrote in an impassioned ruling June 30. "At 240 months, Shamblin's sentence represented much that is wrong about the Sentencing Guidelines; at 12 months, it is almost certainly inadequate. My duty, however, is only to apply the law as I find it."