Re: Sentencing Guidelines, R.I.P.?

by Andrew C. McCarthy

Jonathan raises an interesting point. I don’t see how the federal sentencing guidelines can survive Blakely, the Court’s seeming earthquake of a decision at the end of last term. But I must admit, almost half a year later, the decision has not been that cataclysm I thought it was at the time.

Oh, it’s surely an administrative nightmare for federal judges not to know whether the law they are applying day-to-day in imposing sentences is constitutional. BUT, my government friends tell me that, despite all the caterwauling defense lawyers have done since 1987 about the harshness of the guidelines, it has turned out that defendants have a far greater interest in the certainty the guidelines provide than prosecutors do.

(For the uninitiated, the guidelines prescribe the sentence a judge may impose within the statutory penalty range, so that, for example, a drug defendant who used to not know what sentence he would receive between 0 and 20 years under the drug statutes, is told under the guidelines what his sentence will be within a range of months–say, 51 to 63 months–calculated on a formula based on drug weight, prior record, etc.)

What this has meant in practice, post-Blakely, is that the defendants have generally been willing to stipulate to the application of the guidelines even assuming the Court may throw them out. They figure: better to have the certainty of nothing more than 63 months (and probably less) than the possibility, however remote, of 20 years. With such stipulations, even if the Supremes throw out the guidelines, as they probably will, those sentences will stand. Obviously, that doesn’t solve the problem of the backlog of thousands of cases that were already on appeal when Blakely was decided in June, but I really thought the case would produce more ongoing chaos than it has, and events have proven me wrong.

Finally, I’m not sure if listening to Justice Scalia in Mistretta would have saved the day here. My recollection of Mistretta is that at issue was the structure of the commission that produced guidelines (i.e., that it violated separation of powers to have Congress delegate legislative authority to a commission composed partially of judges and whose members could be removed by the President for cause). Justice Scalia (correctly, as both Jonathan and I would agree) was persuaded that this arrangement violated the constitution, although a lop-sided majority of the Court went the other way. I think, though, that you could have easily figured out a way to promulgate guidelines without running afoul of separation of powers (Congress could have done it on its own instead of delegating.) The problem at issue in Blakely is the much different one of whether the guidelines themselves violate the rights to indictment and jury trial by subjecting the defendant to punishment based on facts not found by the jury beyond a reasonable doubt. In that light, we should also have listened to Justice Scalia in Apprendi, since it foretold Blakely which foretold the present mess.