For the first time in recent memory, the wheels of justice are turning faster than the news cycle. The fallout from the term's sleeper case, Blakely v. Washington, grows more dramatic by the hour. And the best image I can conjure to describe the situation involves all the federal court judges in America racing around with plastic bags, trying madly to dispose of the Supreme Court's droppings.
The gist is this: A few weeks ago, the Supreme Court invalidated a Washington state sentencing scheme that's identical in many ways to the Federal Sentencing Guidelines and the systems used by at least 10 other states. Under these schemes, judges were allowed to ratchet up criminal sentences based on certain "aggravating factors." These aggravating factors (say, the heinousness of the murder, the amount of the drugs) were neither pleaded to by the defendant nor tried before a jury. That means sentences were hiked up, often significantly, based on facts never proven to a jury beyond a reasonable doubt. The court curtailed that practice, giving force to the Sixth Amendment right to a trial by jury. Much to the dismay of the Washington Post, the high court then did precisely what everyone keeps asking courts to do and showed impressive restraint. The court decided only the case before it, and—since the federal guidelines were not on trial—the Supremes declined to declare them unconstitutional. To quote Antonin Scalia, "The Federal Guidelines are not before us and we express no opinion on them."
The problem, of course, is that most scholars agree that the most logical inference one can draw from Blakely v. Washington is that significant portions of the federal guidelines are unconstitutional, too. The justices did not declare that outright. Instead, they implied it, packed up their sarongs and hacky sacks, and took off for the shore, leaving federal courts around the country in a situation that has quickly escalated from messy to desperate. Instead of giving us a clear ruling, the court handed off a dangling implication and appears in no great hurry to resolve things conclusively.
The fallout has been quick and nutty, and the single best place to watch the action unfold is at professor Douglas Berman's wonderful sentencing blog, where the legal landscape is now upending itself on a near-daily basis. Scholars are already chewing on the consequences of Blakely, and the problems aren't just philosophical. The chickens were quick to come home to roost, as prophesied in Sandra Day O'Connor's "sky-is-falling" dissent from Blakely. Tens of thousands of sentences are up in the air, including those of defendants with appeals in progress and defendants convicted before Blakely but sentenced afterward. Federal judges around the country are suddenly faced with having to personally decide whether or not the federal guidelines are unconstitutional. Some, like U.S. District Judge Paul Cassell in Utah, took the bull by the horns and invalidated the federal guidelines two weeks ago.
The federal courts of appeals quickly piled on. A split panel of the 7th Circuit Court of Appeals held last week that Blakely invalidated the federal guidelines, as did a unanimous panel of the 6th Circuit yesterday, effectively declaring the guidelines a set of polite suggestions. The 5th Circuit went the other way last week. The 9th Circuit is girding its loins for a decision on this. As is the 4th. And in an amazing plea for some divine (or at least Supreme) intercession, the 2nd Circuit threw up its hands and sent three questions directly to the Supreme Court, asking it to step in and offer some conclusive guidance immediately.
Does the national chaos really represent an apocalypse? Remember, Blakely is not allowing rapists and drug lords to roam free. This issue affects a significant number of cases, but based on some of the media accounts, one might think that the jailhouse doors had been flung open forever. At a Senate Judiciary Committee hearing this week, U.S. District Judge William Sessions of Vermont opined that "The sky is not falling. ... We are not in the midst of a crisis." And Utah's Judge Cassell declared that the system is not in crisis and that Congress should stay out of the fray. Sen. Patrick Leahy of Vermont was flabbergasted: "Judge Cassell, you say there's no crisis but you just held the entire criminal justice system unconstitutional?"
In his published testimony to the committee, Cassell pointed out that lower courts around the country are hastily cooking up ways to comply with Blakely. Some, believing themselves unable to depart upward from the guidelines, have imposed lower sentences than they'd like (hence the West Virginia drug manufacturer who saw his sentence decrease from 240 months to 12). Some have ruled that under Blakely, judges cannot depart upward from a fixed sentence but can nevertheless go downward. Others have simply put their jurors to back work—determining the truth of each of the aggravating factors once considered solely by the judge. Prosecutors are scrambling to figure out ways to keep defense attorneys from scoring reduced sentences based on Blakely arguments. (Watch tomorrow's Martha Stewart sentencing for some serious Blakely-palooza.) As Cassell puts it, calling this situation a crisis minimizes the efforts of serious judges on the ground who are hard at work making sense of the decision.
The Judiciary Committee seems to have elected to respect the autonomy of the judiciary and give the Supreme Court a chance to sort this out first. My question: Why do we need the Supreme Court to rush in and settle things? And why should the court leap on the first case that comes down the pike?
This problem, in the end, comes back to one we've been debating since sentencing reform was first proposed: Are we willing to trust our judges? I don't just mean in the broad sense of whether we trust them to sentence criminals. I mean in the narrowest sense—why not let the lower court judges figure this mess out for themselves? There is always massive uncertainty and upheaval following a revolutionary high-court ruling. Things are invariably nuts in the short term, and they invariably resolve themselves over time. The coming months will launch a crucial national conversation between lower court judges and the Supremes. Practitioners and academics will weigh in. Law review articles will be written. Brilliant compromises will be forged by smart judges who understand the sentencing rules better than any of us. Various courts will make various heroic efforts to give force to Blakely. All kinds of sausage will ensue, good and bad, for the Supreme Court to consider. From all that, they will select the best possible test case.
The biggest complaint about the current chaos? All the experimentation on the ground undermines the very principle of consistency and uniformity that made the Federal Sentencing Guidelines a necessity in the first place. But critics of the guidelines—judges foremost among them—have spent years arguing that uniformity is overrated since, in the 20 years since their inception, the guidelines have become complicated, draconian, and unfair. Blakely certainly doesn't address all of their complaints about the guidelines. But to some degree, it puts the ball back in the courts' court.
Professor Berman over at the Sentencing Law and Policy blog tells me I'm dead wrong on this. He says this mess is messier than the usual post-decision mess and that the court has to address it quickly because the other players who might have stepped in to fix things purposely stepped back in the belief that the court would get involved. That's a good reason for the court to hear one of these cases but not a reason for it to hear the first (bad) test case that comes along. Berman also notes the serious risk that the same politics that used to animate judges' sentencing decisions are now at play after Blakely: Judges who hated the guidelines could use Blakely to detonate them; judges who loved them are following them anyhow. All of which reassures me that power is back in the hands of the judges.
Yes, there is a circuit split upon us, meaning different courts of appeals have reached different conclusions about the constitutionality of the guidelines. But we live with circuit splits all the time. It felt like the circuits were split over affirmative action for about a million years. The Supreme Court eventually takes these cases and resolves them, as is its mandate. But in the meantime, it's not obvious to me that having different results in different jurisdictions really means the sky is falling. And it certainly doesn't mean the high court should have decided a case that wasn't before it last month. It might just mean that the old judicial laboratory is back in business. As it should be.