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The sentencing conundrum.

Article Excerpt
In Blakely v. Washington, the Supreme Court dropped a bomb on federal and many state sentencing systems by declaring a Washington state sentence, made under that state's sentencing guidelines, a violation of the Sixth Amendment. (1)

The petitioner, Ralph Howard Blakely, pleaded guilty to kidnapping his estranged wife. The facts he admitted in his plea supported a maximum sentence of 53 months under the Washington guidelines. But the court gave him 90 months, finding that he had acted with "deliberate cruelty," which under state law is grounds for increasing a criminal sentence. (2)

The Supreme Court reversed Blakely's sentence even though the 90-month term was less than the 10-year (120-month) statutory maximum for this crime. In Apprendi v. New Jersey, the Court had held that "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." (3) Since Blakely's sentence was less than the maximum, the state had assumed it was complying with Apprendi.

But the Blakely Court held that the

"statutory maximum" for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant .... In other words, the relevant "statutory maximum" is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. (4)

Under this reasoning, the most Blakely could get was 53 months.

The Court's decision, as the Blakely dissenters all pointed out, invalidated not only Washington's sentencing system but also, apparently, the federal system because both depended on post-verdict fact-finding by judges to determine sentencing. The majority declined to say whether the decision invalidated the federal guidelines but noted that the federal government, in an amicus brief, "question [ed]" whether the differences between the federal and Washington guidelines were "constitutionally significant." (5)

The decision threw the federal courts into an uproar: It...

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