Reconsidering the Constitutionality of Federal Sentencing Guidelines After Blakely: A Former Commissioner's Perspective

Our cases have made abundantly dear that a defendant does not enjoy a constitutional right to a jury determination as to the appropriate sentence to be imposed. -United States Supreme Court** On June 24, 2004, the United States Supreme Court issued a 5-4 decision that called into question the constitutionality of the federal sentencing guidelines. Blakely v. Washington ruled that a trial court's upward departure from the penalty range ordinarily prescribed by state law deprived defendant Ralph Howard Blakely Jr. of his Sixth Amendment right to have a jury determine all facts essential to his sentence beyond a reasonable doubt.1 Observing that "[petitioner was sentenced to prison for more than three years beyond what the law allowed for the crime to which he confessed, on the basis of a disputed finding that he had acted with 'deliberate cruelty,'"2 Justice Scalia's majority opinion concluded that "[t]he Framers would not have thought it too much to demand that, before depriving a man of three more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to the 'unanimous suffrage of twelve of his equals and neighbours . . . .'"3 Blakely's immediate impact proved to be more than a "modest inconvenience." Because Washington's determinate sentencing scheme contained features facially comparable to the federal sentencing guidelines, Blakely threatened the legal foundation upon which federal courts have sanctioned offenders since the Sentencing Reform Act of 19844 ("the SRA") took effect. The decision provoked an "avalanche"5 of motions challenging the constitutionality of the federal sentencing guidelines, and judicial opinions nationwide characterized its effects as "cataclysmic."6 The majority of federal district courts ruled that Blakely rendered the federal sentencing guidelines unconstitutional insofar as the SRA required judges to impose sentences based on facts beyond those necessarily contained in the jury's guilty verdict;7 the circuit courts, however, divided sharply.8 The Supreme Court granted certiorari to address this issue and, because of its importance, placed the matter on an expedited briefing schedule.9 As a former member of the United States Sentencing Commission, I viewed these developments with special interest and concern. The Supreme Court had sustained the constitutionality of the federal guidelines well before I became a commissioner in 199410 and several times afterwards as well.11 Nevertheless, the post-Blakely fallout caused me to reexamine this issue. Although concerned that the Commission on which I had served might be found constitutionally untenable, I approached this reassessment buoyed by Justice Jackson's historic display of wisdom in acknowledging error on a prior occasion: Precedent ... is not lacking for ways by which a judge may recede from a prior opinion that has proven untenable .... Chief Justice Taney recant[ed] views he had pressed upon the Court .... Baron Bramwell extricated himself from a somewhat similar embarrassment by saying, "The matter does not appear to me now as it appears to have appeared to me then." . . . And Mr. Justice Story, accounting for his contradiction of his own former opinion, quite properly put the matter: "My own error, however, can furnish no ground for its being adopted by this Court . . . ."12 If these pillars of our jurisprudence could confess error, surely I could candidly reexamine the legality of a sentencing system that I had helped to implement. This Article represents the product of that review. It advances the position that, notwithstanding Blakely, the federal sentencing guidelines are constitutional. Rather than focus exclusively on the Blakely majority opinion, this conclusion is based on both the full spectrum of Supreme Court sentencing precedent and systemic differences that distinguish the federal sentencing guidelines from Washington's statutory scheme. …