Since this may very well turn into a contentious issue in the election (federal and state levels), I'm posting this here, forgive me if i put it in the wrong place and i guess the mod will move it as he/she sees fit. http://slate.msn.com/id/2103754/ jurisprudence Run-on Sentencing The barely noticed mayhem following the Supreme Court's Blakely decision. By Gerald Shargel Posted Monday, July 12, 2004, at 2:21 PM PT It was the cruelest of lawyer jokes: A man walks into a lawyer's office and says he's been indicted with partners on multiple counts of stock fraud. He sees the government's case as weak and wants to go to trial. The lawyer informs the stunned client that if he's convicted on only one count, the jury's not-guilty verdict on the other charges means little under the Federal Sentencing Guidelines. Why? A defendant may be punished for acquitted conduct if the judge merely believes he's guilty. The punch line: You can win at a trial only if there's a complete acquittal. If you're convicted of anything, you can be punished for everything. It's not a very funny joke. Since the guidelines' advent, in the wake of the Sentencing Reform Act of 1984, only federal prosecutors have been laughing. But late last month, the laughter stopped when the Supreme Court handed down its decision in Blakely v. Washington. In Blakely, the court addressed a Washington state sentencing scheme closely resembling the Federal Sentencing Guidelines. Blakely didn't involve a trial; the defendant pleaded guilty to kidnapping and using a firearm in connection with a domestic dispute. Under Washington law, Blakely faced a prison sentence of 49 to 53 months. Like the federal guidelines, the Washington statute allowed the judge to consider aggravating factors that would enhance that sentence. Following Blakely's guilty plea, the judge determined the offense entailed "deliberate cruelty" and imposed a 90-month sentence, more than three years longer than the standard maximum term of 53 months. The Supreme Court ruled that Blakely's sentence was unconstitutional because the facts establishing that "deliberate cruelty" were neither admitted by Blakely during the guilty plea, nor found by a jury beyond a reasonable doubt. The ruling was predicated on the Sixth Amendment right to a jury trial. In short, Blakely is a case all about sentencing guidelines. And, while expressly reserving the question of the constitutionality of the federal guidelines, Blakely will presumably apply with equal force to them. Under traditional pre-guidelines law, Congress established statutory maximum sentences that gave judges wide discretion to impose any sentence up to the prescribed limit. If a jury found the defendant guilty, or if the defendant pleaded guilty, the judge was free to consider all relevant information and subjectively sentence the defendant to any prison term below that ceiling. But in the 1984 Sentencing Reform Act and the guidelines' advent, fixed base-offense levels were set for each crime. Following conviction, whether by trial or plea, the judge considers a series of compulsory aggravating factors. The actual sentence can balloon based on the judge's independent determination of a host of potential enhancements, including uncharged and acquitted conduct. In a very real sense, under the guidelines, the trial continues long after the jury has gone home. Blakely announced a sea change because it effectively requires these former "sentencing factors" to be found by a jury or admitted by the defendant. When first announced, the Blakely decision drew little notice outside the criminal-law community. The mainstream mediaalready in election-year modefocused on the politically charged Guantanamo Bay, enemy combatant, and Internet pornography cases. But no ruling since the time of the Burger Court has had a more profound and immediate effect on the federal criminal-justice system. On the day Blakely was decided, the federal courts were thrown into unprecedented chaos and procedural paralysis. Nearly all sentencing hearings were adjourned, most plea bargaining was halted, and pending trials were clouded with uncertainty. One case decided six days later illustrates Blakely's extreme impact. Four days before Blakely came down, a federal judge in West Virginia sentenced a methamphetamine defendant to 20 years in prison after making factual findings about the amount of drugs involved, the defendant's role in the offense, justice obstruction, and weapon possession, none of which the defendant admitted. Within the time frame permitted to reconsider the sentence, the judgebased solely on the defendant's plea admissionsapplied the new Blakely rule and slashed the prison term to just one year. Last Friday, the 7th U.S. Circuit Court of Appeals decided in a momentous case, United States v. Booker, that "Blakely dooms the [federal] guidelines insofar as they require that sentences be based on facts found by a judge." The court heard and decided Booker on an expedited basis, specifically in order to provide the district courts with guidance on resentencing as a result of the "long shadow" cast by Blakely. Other Supreme Court precedent seems to indicate that Blakely does not apply retroactively, to convictions that have already become "final" by completion of the appellate process. The 11th Circuit Court of Appeals has already ruledalso on Fridaythat Blakely does not create a new rule for retroactivity purposes. But there are thousands of cases still eligible for Blakely consideration, those on direct appeal or awaiting sentence where facts allowing enhancements were not submitted to the trial jury or admitted in the defendant's guilty plea. Right now, judges, prosecutors, and defense lawyers are all over the map. Martha Stewart's lawyers are already seeking a Blakely ruling that the guidelines are wholly unconstitutional. They're asking the judge to sentence her, under discretionary pre-guidelines law, to probation rather than the prescribed guidelines range of 10 to 16 months. A federal judge in Utah also wrote a lengthy opinion concluding that where sentencing enhancements would offend Blakely, the guidelines should be scrapped altogether, and sentences passed under pre-guidelines law, although influenced by the guidelines. The Utah decision offers no support to Stewart, however, because Stewart's case does not involve Blakely-type enhancements, thus forcing her lawyers to argue that the entire federal sentencing act is unconstitutional. Without any statutory authority, a federal judge in Brooklyn this week is convening a sentencing jury to consider the enhancement factors, an approach the Utah judge had deemed illegal and unworkable. Naturally, defense lawyers will press for a pure application of Blakely, one vacating or precluding any enhancements not admitted or found at trial. Fearing sentencing windfalls, the Justice Department, in a July 2 directive to federal prosecutors, takes the position that if Blakely is found to apply to the federal guidelines, the system as a whole cannot be constitutionally implemented and traditional discretionary sentence procedures should govern. But there's a catch: The directive orders federal prosecutors to recommend sentences mirroring the otherwise applicablealbeit constitutionally suspectguidelines sentence, including upward enhancements. This position is the most disingenuous of all the responses so far: a transparent attempt to evade Blakely by using the guidelines while pretending the sentence is a discretionary one. In her dissenting opinion in Blakely, Justice Sandra Day O'Connor predicted all the chaos we're now witnessing. She wrote, "The Court ignores the havoc it is about to wreak on trial courts across the country." To be sure, the mayhem has begun. Defense lawyers are filing Blakely motions daily with discordant results in various jurisdictions almost a certainty. The Senate judiciary committee will open hearings on July 13 on "Blakely v. Washington and the Future of the Federal Sentencing Guidelines." And intermediate appeals courts will be flooded with Blakely arguments until the Supreme Court revisits the issue. The future of criminal sentences may not be all that bright. A conservative Congress may respond with draconian mandatory minimum sentences that make defendants pine for the bad old days of the guidelines. But at least for now, trial by jury has resumed its rightful place as the bedrock of our constitutional justice system. Gerald Shargel has represented many high-profile clients, including John Gotti. He is a practitioner in residence at Brooklyn Law School, where he also teaches.