The National Pulse

Guidance on Guidelines

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Federal sentencing guidelines were mentioned just once by Jus­tice Antonin Scalia in June’s bombshell U.S. Su­preme Court decision that struck down a similar scheme Washington state had used to punish its criminals:

“The federal guidelines are not before us, and we express no opinion on them,” Scalia wrote in a foot­note to the five-justice majority opinion that on June 24 declared Washington’s guideline system in violation of the Sixth Amend­ment’s right to jury trial. Blakely v. Washington, No. 02-1632.

It was only 14 words. But they resonated deeply and convinced precious few in the ensuing days and weeks that the decision amounted to anything less than a take-no-prisoners attack on the nearly 20-year-old federal guidelines. Now the federal guidelines are at issue.

At the Bush administration’s insistence, the justices on Aug. 2 accepted two drug cases that place the guidelines squarely in front of them. Both have been consolidated and are slated for argument on Oct. 4, the first day of the court’s upcoming term.

In one, the 7th U.S. Circuit Court of Appeals in Chicago struck a sentence based partly on the amount of drugs involved because a judge made that factual determination without a jury. United States v. Booker, No. 04-104. In the other, a trial judge in Maine had been prepared to sentence the defendant to up to 16 years, but lopped the term to six years after Blakely was decided. United States v. Fanfan, No. 04-105.

Also at issue is whether Scalia’s constitutional aversion to the guidelines has legs. His terse footnote only thinly veiled a well-nurtured loathing for the federal sentencing system that Scalia began to refine years ago.

Scalia found himself in a minority of one in 1989 when the guidelines and the appointed U.S. Sentencing Com­mission that promulgates them handily passed their first constitutional test in the Supreme Court. United States v. Mistretta, 488 U.S. 361.

Mistretta turned on the majority’s rejection of a theory that Congress unconstitutionally had delegated excessive legislative power to the sentencing commission. Never­theless, it gave lone dissenter Scalia plenty of room to vent. He suggested his colleagues unknowingly had endorsed “a sort of junior-varsity Congress” as a new branch of government.

Since 2000, Scalia has been with the majority when the court embarked on a course of holding unconstitutional state court sentences that required judges—instead of jurors—to make factual findings to back them up. Those decisions rebuked judicial fact-finding that led to sentences exceeding statutory maximums, up to imposition of the death penalty.


As the latest case in the series, Blakely goes one step further. The defendant, who admitted kidnapping and terrorizing his estranged wife, actually received less than the statutory maximum, but still wound up with a sentence beyond the “standard” guideline range state legislators had set for the offense.

But something more than distaste for the guidelines may be at work. Just what is another question. The answer eluded Justice Sandra Day O’Connor in her Blakely dissent: “t is difficult for me to discern what principle besides doctrinaire formalism actually motivates today’s decision.”

O’Connor isn’t alone. Harvard law professor Charles Fried points to an all-or-nothing position Scalia took in Hamdi v. Rumsfeld, No. 03-6696, de­cided four days after Blakely. Ameri­can citizen Yaser Esam Hamdi was accused of fighting for the Taliban in Afghanistan and held in a naval brig for more than two years without charges. As the other justices grappled with the delicate balance be- tween national security and individual liberty, the resolution for dissenter Scalia boiled down to charging Hamdi with treason or flat-out releasing him.

“It shows a kind of constitutional rigidity that is quite frightening and uncalled for,” says Fried, a former solicitor general who argued successfully for the guidelines in Mistretta. “He gets these bees in his bonnet from time to time.”

Despite the footnote disclaimer, the four Blakely dissent­ers predicted nothing short of sentencing bedlam. Uncer­tainty on the federal bench arose within days. In some cases, trial judges concocted elaborate formulas to preserve the stiff sentences that the guidelines called for. In others, judges simply slashed sentences to almost nothing. Most appellate opinions played the guidelines’ dirge.

While insisting that the guidelines remain safe from constitutional attack, the Justice Department nevertheless wasted no time in hustling sample anti-Blakely sentencing memorandums and appellate briefs to line pros­ecutors. “Blakely-friendly” indictments sprang up over­night, not only charging crimes but containing sentencing factors for jurors to mull in addition to a defendant’s innocence or guilt.

For example, jurors hearing the case against ex-Enron Corp. CEO Kenneth L. Lay won’t just have to decide whether he lied, cheated and stole. They also will be asked to venture into formerly judge-occupied territory and consider allegations in the indictment that would bear on any sentence, such as the amount of money lost by victims of Enron’s collapse.


Sentencing guidelines, considered mandatory as opposed to advisory in most systems, evolved in the early 1980s as a formula to ensure evenhanded treatment of like defendants convicted of the same crimes under similar circumstances. The federal guidelines offer a recommended sentencing range within the minimums and max­imums prescribed by statute. They replaced an indeterminate system that led to wide variations in sentences from district to district and even from judge to judge by leaving courts free to mete out any term within the statutory scope.

Though they’ve become accustomed to them over the years, judges long have viewed the guidelines as infringing on their discretion. The most noise has come from members of the criminal defense bar, whose clients have considerably less wiggle room to argue for lenient treatment under the guidelines.

Fried sees Blakely as one more step in a highly orchestrated campaign that in part preys on public ignorance by confusing guidelines with unrelated mandatory minimums, which in many ways are harsher because they are even more rigid.

“There’s been an absolute drumbeat against the guidelines led by the defense bar and the judges,” Fried says. “I think some members of the Supreme Court have been influenced by it. … It’s hard to see how [the guidelines will] stand, and it’s a great shame.”

Nor has the Justice Department won many converts on the bench in its scramble to prop them up. From magistrates to Supreme Court justices, the judiciary won’t likely forget that the same Justice Department championed the 2003 Feeney Amendment, which cut even deeper into ju­dicial discretion by closing nearly all avenues available to judges to issue sentences below the guidelines. “They’ve certainly antagonized the judiciary,” Fried observes.

Nevertheless, a guideline system still could find a friend in Scalia. He approvingly described how Kansas legislators reacted after their state supreme court in 2001 became the first to take a cue from the U.S. Supreme Court and declare its judge-based sentencing scheme unconstitutional on Sixth Amendment grounds.

Kansas shunned quick-fix approaches, such as making the guidelines truly advisory, returning to the indeterminate system or simply expanding individual sentencing categories so the top of the guideline range matches statutory maximums already on the books. Kansas sentencing commission members concluded that those and other approaches likely would result in sentencing disparities that guidelines are supposed to prevent.

“We didn’t think our supreme court would let that kind of sham stand because our guidelines are supposed to bring certainty, and this would bring uncertainty,” says commission chair Ernest L. Johnson, a trial judge from Kansas City.

Instead, Kansas sentencing commissioners and lawmak­­ers methodically devised a bifurcated sentencing procedure, where juries first determine guilt, then reconvene for a penalty phase to hear additional evidence for sentencing purposes. The National Association of Criminal Defense Lawyers urged the U.S. Senate Judiciary Com­mittee to consider the Kansas model as the panel searched for ways around Blakely.

Kansas prosecutors who plan to seek longer sentences than the guidelines allow first must notify defendants of their intent at least 30 days before trial. Then prosecutors must prove the factors supporting an enhanced sentence beyond a reasonable doubt to a unanimous jury before a judge can use them to issue the tougher sentence. Judi­cial fact-finding typically requires only a preponderance of the evidence.


Though Scalia’s mention of Kansas may signal a broad but unofficial U.S. Supreme Court recognition of bifurcated sentencing, no cases dealing with the nitty-gritty application of the procedure have yet found their way to the state’s supreme court. Ahead are difficult questions, such as what happens after the trial jury is dismissed and prosecutors later find information that would significantly increase the sentence. Do they impanel another jury?

Johnson says he doesn’t know. But he and other Kansas trial judges long ago solved one Blakely dilemma. Because Blakely also applies to guilty pleas, judges are limited to sentences based on the facts defendants admit. In many courts, prosecutors and defense lawyers merely stipulate to a factual basis for the plea without elaboration. Other times, prosecutors will recite a summary of the facts, which no matter how accurate, still isn’t evidence. Johnson instead directly queries the defendant during the plea colloquy.

“What did you do that makes you think you’re guilty of aggravated burglary?” Johnson might ask. With a warning that lies and omissions can kill a plea deal, the defendant’s own account of the offense dispenses with the need for judicial fact-finding.

“It’s the best way to verify that the plea is knowing, voluntary and intelligent and that the defendant has acknowledged the factual basis,” Johnson says.