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The Blakely Effect: Managing the Uncertainty
On June 24th, the Supreme Court decided a case that has sent a virtual shock-wave through the criminal justice system and threatens to upset the long-established practice of sentencing defendants under the federal Sentencing Guidelines. In Blakely v. Washington, 124 S.Ct. 2531 (2004), the Court invalidated a defendant's sentence imposed under the State of Washington's sentencing guidelines by holding that the Sixth Amendment prohibits a judge from increasing a defendant's sentence based on facts beyond those found by the jury or admitted by the defendant.
Despite Justice Scalia's terse statement in a footnote that the Court expressed no opinion on the federal guidelines because they were not before the Court, the Blakely ruling has rendered the federal guidelines vulnerable to attack. Using the current guidelines, judges are required to consider certain facts — found by a “preponderance of the evidence” — which provide the basis for sentence enhancements. These facts are rarely charged in the indictment and never submitted to a jury. This has been the practice in federal courts for 17 years and is also used in many states. Many commentators say the practice is inconsistent with the Court's ruling in Blakely.
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