The Road to Booker
While no one had predicted the two-part decision, most Court-watchers were at least braced for the first part, expecting the justices to rule that the guidelines were constitutionally flawed. Booker and Fanfan were the latest in a series of cases in which the Court had been moving inexorably in that direction. They brought to a head tensions that have existed in the criminal justice system since the founding of the republic. "Let mercy be the character of the lawgiver," Thomas Jefferson wrote in 1776, "but let the judge be a mere machine."
Jefferson's hopes notwithstanding, until the late 1980s, judges had broad discretion to choose sentences within wide ranges established by Congress or state legislatures. They were also free to base their decisions on a variety of facts about the defendant's criminal history and other matters that were never presented to the jury in cases that went to trial. And they were not required to find facts "beyond a reasonable doubt."
That discretion produced glaring disparities in sentences. Similar defendants convicted of similar crimes were often given widely varying punishments by different judges. Sentencing reform caught on, and by the end of the 1980s, Congress and many states had enacted guidelines. A leading proponent of the federal guidelines was Stephen Breyer '64, who helped draft them before he became an associate justice of the Supreme Court.
The federal guidelines established ranges of mandatory penalties for the gamut of crimes, and included adjustments upward or downward based on many factors, including the defendant's criminal history and characteristics of the offense. Many of the facts relevant to punishment were determined by judges, not juries, often by a measure of proof more relaxed than the "beyond a reasonable doubt" standard that governs the establishment of guilt.
There were very few grounds for judges to depart from those ranges. And, as Congress enacted progressively tougher penalties for drug crimes and other offenses, judges increasingly complained that they were being forced to impose punishments too harsh for the circumstances of particular cases.
Defense attorneys brought numerous legal challenges to the guidelines in the 1990s but were unsuccessful in having them thrown out.
But in 2000, in the case of Apprendi v. New Jersey, defense lawyers hit pay dirt when they made a Sixth Amendment argument based on the right to have facts found by juries, not judges. The Sixth Amendment was the sleeping giant of sentencing law, and they shook it awake. When they did, they found five receptive members of the Court, including Justices Antonin Scalia '60 and Clarence Thomas.
In Apprendi, the Court ruled 5-4 that any fact, except for a defendant's prior convictions, that a judge relies upon as the basis for increasing the defendant's sentence above the statutory maximum (where such an increase is allowed based on the finding of an aggravating factor) must be submitted to a jury. "At that point, the handwriting was on the wall," said Stuntz, and the broader implications for judicial fact-finding under mandatory guidelines were hard to ignore.
The Blakely Thunderbolt
Still, when the Court agreed in 2003 to hear a state guidelines case out of Washington, many thought it would use that case, Blakely v. Washington, to rule, as had nearly all lower courts, that Apprendi had no applicability to judicial fact-finding affecting sentences within otherwise applicable statutory ranges. "A lot of people hoped the Apprendi principle was limited to situations where a judge tries to impose an exceptional sentence, above the normal statutory maximum, based on some additional aggravating fact," said Douglas Berman '93, a professor at Ohio State University's Moritz College of Law and one of the nation's foremost experts on sentencing law. "They thought the Court would use Blakely to make it clear that judges could still engage in fact-finding that would only affect sentences below the normal statutory maximum."
But in June of last year, the Court ruled 5-4 in Blakely that the Sixth Amendment required that any fact relied upon as the basis for a sentence harsher than the one triggered by the facts found by the jury or admitted by the defendant--even a sentence below the statutory maximum--must be found by a jury, not a judge, unless the defendant waived the right to a jury. The Court held certain components of Washington's sentencing provisions unconstitutional because they allowed a judge, acting without a jury and using a lower standard of proof than "beyond a reasonable doubt," to sentence above a legislated standard range based upon the judge's own finding of aggravating facts.
"[T]he '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 ... not the maximum sentence a judge may impose after finding additional facts," wrote Scalia in his opinion for the majority. "When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts 'which the law makes essential to the punishment.'"
The Blakely decision suggested that judicial fact-finding cannot form any part of the basis for the imposition of a criminal sentence within a mandatory sentencing guidelines system, absent the defendant's waiver of a jury.
"Blakely made clear that if you want a system of mandatory guidelines where sentences are bumped upwards based on fact-finding--even when they are still below the statutory maximum--then you're going to have to let the jury decide the facts relevant to sentencing, and by a 'beyond a reasonable doubt' standard," Berman said. "It was a thunderbolt."
Even though the Blakely holding was limited to Washington state's guidelines, Scalia's opinion left little doubt that the federal guidelines would not survive Blakely-based scrutiny. With approximately 87,000 federal criminal prosecutions each year, the potential impact was staggering.
The federal guidelines required judges to elevate sentences from a base, or "presumptive," level whenever any of a wide range of enumerated aggravating factors was proven by a "preponderance of the evidence." Most of those factors were specified only in the guidelines, and not in statutes. If Blakely implied that federal defendants would now have the right to jury trial of those factors, the federal court calendars could become unmanageable.
"Blakely cast so much doubt on the continuing constitutionality of judicial fact-finding under the federal guidelines that just about everybody begged the Court to either make it official or find a way to take a step back," said Stuntz. "Not just the Justice Department and the federal defense bar, but federal judges all over the country implored the Court to decide whether the federal guidelines had any continuing viability in view of Blakely."
The Court promptly agreed to hear appeals in two federal sentencing cases, Booker and Fanfan, and scheduled argument for the first day of the new term, Oct. 4, 2004. Three months later, it issued its decisions and opinions in both cases.