July 18, 2004

Making juries matter again

By: James N. Markels

Sometimes the biggest Supreme Court decisions don’t announce themselves with much fanfare. While pundits frothed over the high-profile cases concerning Vice President Cheney, the Pledge of Allegiance and the detainees in Guantanamo Bay, the Court quietly upended the entire federal sentencing system in Blakely v. Washington.

Well, more precisely, Justice Scalia’s opinion for the Court invalidated a state’s sentencing system that happened to be closely modeled on the federal sentencing guidelines. But already the federal courts are in a tizzy over the broader meaning of Blakely. Two Circuits have already held that Blakely invalidates the federal system, and another has certified the issue to the Supreme Court for an explanation. To appreciate the extent of this, understand that every federal criminal defendant, from Martha Stewart to the lowliest drug pusher, is inserting Blakely into his or her arguments as we speak. Thousands upon thousands of jail sentences are up in the air right now.

And to all of that, I say: Hallelujah!

The best way to understand what’s going on is by example. Let’s take two people, Abel and Bob, both of whom are guilty of grand larceny, meaning that they both stole stuff worth $200 or more from somebody else’s property. Our justice system has long understood that there are a host of reasons why we might not want to punish Abel and Bob the same way. Maybe Abel is a college student with no criminal record while Bob is a hardened criminal. Maybe Abel was unarmed when he committed the act while Bob was armed to the teeth. So, understanding this, legislatures made the punishments for crimes a range rather than a fixed period–say, one to ten years for grand larceny instead of a flat five years for everyone.

Originally, the jury would find Abel and Bob guilty of grand larceny and then the judge would pick a sentence somewhere in the range, so Abel could get one year and Bob could get ten. But there were more than a few judges who would give Abel ten years because he was black while Bob would only get five because he was white. Disparity in sentencing between the races became painfully obvious and undermined the validity of the system. Giving judges broad latitude in sentencing had to go.

The replacement for the federal system was the U.S. Sentencing Commission, and many states adopted systems that were similar in function. The new approach was to narrow the range available for a given crime–so that, say, grand larceny would now be a 2-3 year range–but then allow the judge to increase or decrease that range based on approved “aggravating” or “mitigating factors.” If the judge found that there was “substantial and compelling evidence” that a firearm was used in the commission of the crime, as one possible aggravating factor, the range could be bumped up a notch or two.

The basic idea was to force judges to say precisely why Bob deserved a higher sentence than Abel so that appellate courts could catch judges that abused their discretion based on race or other unacceptable reasons. On its face, the new sentencing guidelines didn’t change the old system as much as it simply held judges more accountable for their sentencing decisions. Abel could still get one year for grand larceny if he had the mitigating factors, and Bob could still get ten years for the same crime if he had all the aggravating factors.

However, there is one crucial difference between the two systems: What the jury is finding Abel and Bob guilty of. In the old system, the jury found Abel and Bob guilty of a crime that could give them between one and ten years in jail. Today, the jury finds them guilty of a crime that can only give them between two and three years in jail. So when Bob is convicted of grand larceny, that means that the jury found him deserving of the 2-3 year range beyond a reasonable doubt, while the judge found him deserving of a ten-year sentenced based on “substantial and compelling evidence” of “aggravating factors” that didn’t have to be proven to the jury. Before, the jury found beyond a reasonable doubt that Abel and Bob could both get up to ten years.

This difference may not look like much, but it is crucial to the holding in Blakely, where the Court found that, under the Sixth Amendment right to a trial by jury, a criminal defendant cannot be given a jail sentence based on factors that have not been admitted by a defendant or found proven beyond a reasonable doubt by a jury. This means that all the aggravating factors in Bob’s case would have to be proven to the jury before he could be given jail time for them. So it’s easy to see how this throws much of today’s federal sentencing out the window.

The dissenters, like Justice O’Connor, worry that the ultimate result will be a return to the system before the Sentencing Commission, along with racial disparity in sentencing. This is highly doubtful. All that Blakely requires is that every aggravating factor now be proven to the jury instead of the judge. This is a big change from the current procedure, but it can be done. Some may say that this is all Justice Scalia’s great revenge, since he was the lone dissenter in Mistretta v. United States, which held the Sentencing Commission constitutional in the first place. But what has actually occurred is an important shift in emphasis back to juries.

In the original system, juries would bless a relatively large range of jail time and leave the judge with considerable power to determine the sentence. In the modern system, the jury blesses a narrow range but the judge is allowed significant ability to more than double that punishment as they see fit. Under Blakely, juries will finally have the power to determine most of their peer’s sentence. As Justice Scalia wrote, “Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.” That control has long been lacking in judicial sentencing, and Blakely finally sets it straight.

James N. Markels is an attorney and a regular columnist for