The Lost History of Apprendi and the Blakely Petition for Rehearing

Volumes surely will be written about our visions, and the realities, of the post-Blakely world. However, before we all march reluctantly or otherwise into that future, it is valuable to fully acknowledge the past. As the Petition for Rehearing filed on Behalf of Washington State in Blakely (hereinafter “Pet.”) explained, Blakely and Apprendi were undoubtedly founded on an erroneous historical understanding of the Framers’ views in 1790 when they wrote the 6th Amendment’s jury-trial guarantee. The fact that the Framers themselves wrote over a dozen indeterminate sentencing ranges in the first federal crime bill (see 1 Stat. 112–118; Pet. at 3–4), has simply been overlooked by the Court. A full and fair debate about the constitutional rules still being defined (most immediately in Booker and Fanfan) cannot be had if this history is ignored. Thus we are very grateful to Professor Doug Berman and the editors of the Federal Sentencing Reporter for reprinting the Petition in full below. Although the Petition was denied without opinion on August 23, 2004, the constitutional debate to which it speaks is far from over. Amid the robust and fruitful policy discussions about sentencing that Blakely has engendered, it is possible to forget that Blakely and Apprendi state constitutional rules. As such, without a firm basis in the Constitutional text, their holdings may not legitimately be applied to the States, whether or not their policy effects are good are bad. Yet the precise steps to reach the constitutional holding of Blakely tend to be ignored. It is worthwhile then to review the relevant constitutional language that allegedly requires Blakely’s result: “The Trial of all Crimes . . . shall be by jury” (Art. III, sec. 2) and “In all criminal prosecutions, the accused shall enjoy the right to . . . trial, by an impartial jury . . .” (Sixth Amendment). Concededly, there is no “plain language” here about sentencing. Thus sentencing has never been viewed part of the “criminal prosecution” for Sixth Amendment purposes (or part of the “Trial” mentioned in Article III), such that jury sentencing would be constitutionally required in all criminal cases. Cabana v. Bullock, 474 U.S. 376, 385 (1986). We know this to be true most fundamentally because when the Framers themselves wrote sentencing statutes — in 1790, contemporaneously with drafting the Bill of Rights and sending it to the States for ratification — they did not require jury involvement. Federal sentencings, by judges alone, were subsequently carried out as the living and breathing Framers watched. Silence can sometimes speak volumes. See Pet. at 6 & n.8. Thus constitutional interpretation is required to determine whether, and when, the Constitution requires jury involvement in punishment determination. And of course, for at least the past quarter-century, the “intent of the Framers” has been thought to be the primary inquiry in constitutional interpretation. The principal focus of the Blakely Petition for Rehearing was simply to point out that significant evidence of the Framers’ own sentencing statutes has, so far, been overlooked. Rather than look to English courts or common law, as the Court did at length in Apprendi (530 U.S. at 478–483), the constitutional focus must be on what the Sixth Amendment’s authors thought about sentencing. Our Petition presented undisputable evidence that what they thought is that indeterminate sentencing, without jury involvement, was fine. When this is known (rather than assuming that they were unfamiliar with it, as was repeatedly suggested in Apprendi), the constitutional “leap” needed to say that the Framers nevertheless would have condemned as unconstitutional more precise legislative direction about how to sentence within their ranges, becomes larger than recognized in Blakely. Who knows, had this understanding of the Framers been considered initially, it might even have changed a vote. A surprising, and significant, point about Blakely, however, is that none of the parties or amici argued to the Court about contemporaneous constitutional history. The briefs are devoid of any historical presentation, even though the question presented in Blakely — within-range sentencing — had been expressly reserved by the Apprendi Court immediately after it presented its historical analysis (erroneously claiming that indeterminate sentencing had been largely unknown to the Framers). Whatever the explanation for this briefing lacuna, it perhaps makes it less surprising that the Blakely Court likewise did not discuss historical sentencing evidence specific to the Framers. Rather, the majority merely said that “we compiled the relevant authorities in Apprendi and need not repeat them here” (124 S.Ct. at 2536–37). This was an odd dodge, however, because the issue of legislative sentencing directions given to judges, for