EVER SINCE the Supreme Court handed down a decision in the case of Blakely v. Washington at the end of its recent term, the lower federal courts have been in turmoil. The decision -- which held that many traditional sentencing factors must be proven to juries, not considered by judges after a conviction -- casts grave constitutional doubt on sentencing rules throughout the country, including federal sentencing guidelines. Yet the court deliberately, and quite outrageously, declined to clarify whether it was actually striking down the guidelines, which it had previously upheld. The result is that nobody knows what the rules are today. In the weeks that have followed, inmates around the country -- including, locally, the man convicted of driving a tractor onto the Mall -- have been let off with particularly mild sentences. And courts around the country have been flailing. The U.S. Court of Appeals for the 7th Circuit -- on a divided vote -- held that Blakely applied to the federal guidelines, as did a unanimous panel of the 6th Circuit yesterday. The 5th Circuit ruled earlier in the week that it didn't. Meanwhile, the Justice Department does not know how it must handle cases, and Congress doesn't know whether it will have to rewrite federal sentencing rules. A quick legislative fix is a long shot.
Amid the confusion, one court has responded with a particularly good idea: The New York-based Court of Appeals for the 2nd Circuit invoked a rarely used provision of federal law that allows federal appeals courts to send questions to the Supreme Court. Blakely, the court wrote, not only casts into doubt 220,000 federal sentences "but it also raises the prospect that many thousands of future sentences may be invalidated or, alternatively, that district courts simply will halt sentencing altogether pending a definitive ruling by the Supreme Court." The court went on, in an extraordinary conclusion, to plead -- despite the fact that the Supreme Court term is over -- for "an expedited briefing and hearing schedule" to avert "what we see as an impending crisis in the administration of criminal justice in the federal courts."
The Supreme Court justices responsible for Blakely should read these words with shame: The rebuke to their work is a profound one. The lower court has said, in essence, that the rules governing something as basic to the justice system as criminal sentencing are both unknown and unknowable under the high court's pronouncement. It's hard to imagine a more basic failure in meeting the court's obligation, as described in the 1803 case of Marbury v. Madison, "to say what the law is." At a practical level, the 2nd Circuit judges have pointed out the most reasonable response for the lower courts and for Congress and the administration; other courts and Congress should consider formally urging immediate Supreme Court clarification as well. The Supreme Court made this mess, and it should be obliged to clean it up quickly.