Ruling Casts Doubt on Some State Sentencing Systems
By Kathleen Hunter, Staff Writer
The jury is still out on exactly how a recent U.S Supreme Court decision may change state criminal sentencing systems, but legal experts are looking to Kansas - where juries, not judges, hold the key - as a potential model for states in need of fast reforms.
The high court's 5-4 ruling in Blakely vs. Washington on June 24 invalidated a portion of Washington state's sentencing statute that allowed judges to find additional facts after juries had rendered their verdicts, and to extend a defendant's sentence based on those facts.
While the case involved only Washington's sentencing guidelines, its impact could be felt in more than 20 states that also employ structured sentencing systems
The ruling has prompted considerable head scratching and hand-wringing throughout the nation's legal community. It has severely shaken the federal sentencing system, whose guidelines are predicated on similar judicial fact-finding. The high court will clarify in October whether the ruling applies to the federal guidelines and, if so, whether it invalidates them. Meantime, federal district courts have experienced confusion as to proper sentencing standards, and appellate courts have issued conflicting opinions on the issue.
Blakely may have a somewhat more limited impact on the functioning of state sentencing systems because judicial fact-finding is used to determine sentences in only a small fraction of state-level cases. Plus, the nature of state sentencing systems makes it easier for state courts to sidestep the ruling until more permanent statutory solutions are enacted. Even so, Blakely could have considerable state-level repercussions, especially in states with sentencing structures similar to Washington's.
"States are trying to figure out what is really going on, based on a Supreme Court ruling that definitely could alter the very premise of how sentencing works in some states," said Daniel Wilhelm, director of state sentencing and corrections programs at the Vera Institute of Justice, a New York-based organization that studies crime-related issues.
According to an Aug. 6 report from the institute, sentencing standards in thirteen states - Alaska, Arizona, California, Colorado, Indiana, Minnesota, New Jersey New Mexico, North Carolina, Ohio, Oregon, Tennessee and Washington - will be fundamentally affected by the ruling.
Of those, Minnesota, North Carolina, Oregon and Tennessee have sentencing procedures that most closely mirror Washington's. Those five employ presumptive sentencing guidelines that set a sentence range for an offense but allow a judge to find aggravating factors and use them to increase a sentence beyond the standard range.
Blakely might also affect sentencing in an additional eight states - Arkansas, Delaware, Maryland, Michigan, Pennsylvania Rhode Island, Utah and Virginia - whose sentencing structures contain elements similar to Washington's, the Vera report said.
In an effort to make sure punishments fit crimes and to ensure parity among defendants, about half of the 50 states have adopted some sort of statutory sentencing guidelines over the past several decades.
Only three states - Louisiana, Missouri and Wisconsin - will likely escape direct Blakely impacts, the report states, because they use voluntary guideline systems, in which judges are encouraged to use guideline ranges but are not required to find additional facts to impose harsher sentences.
Courts, sentencing commissions and state legislatures all will probably play a role in interpreting and responding to Blakely, experts say. Because most legislatures are out of session until next year, state courts - in some cases with the help of sentencing commissions - are dealing with the high court decision in the short term.
In Minnesota, for example, a state appeals court on July 20 cited Blakely in overturning a sex offender's 40-year prison sentence.
Dennis Whitley was convicted last year of fourth-degree criminal conduct, which carries a 57-month sentence under state guidelines. But prosecutors argued during sentencing that Whitley was a pattern sex offender, and a district court judge - citing a state law that allows longer sentences for habitual sex offenders - hit him with 40 years. Citing Blakely, the appeals court ruled that Whitley had a right to have a jury determine beyond a reasonable doubt whether he was, in fact, a habitual sex offender.
The Vera Institute's Wilhelm said he was aware of about 20 other cases in which state courts, including the Michigan Supreme Court, already have cited Blakely.
A number of states have begun to search for more permanent ways to bring their sentencing structures in line with the ruling.
Just days after the decision, Minnesota Gov. Tim Pawlenty (R) ordered the state's sentencing commission to review Minnesota's sentencing guidelines and offer short-term recommendations within a month on how the state could comply with the Supreme Court's ruling.
The commission recommended on Aug. 6 that the state modify its plea process so that defendants would stipulate to any aggravating factors that might be used in sentencing, and it also urged that the state adopt a dual - or "bifurcated" -- jury system similar to one already used in Kansas. In that system, the trial jury not the judge - determines enhanced sentencing during a separate hearing held after a guilty verdict is handed down.
"Minnesota is ahead of the curve," said Douglas Berman, a law professor at Ohio State University, whose "Sentencing Law and Policy" Web log has functioned since the ruling as a clearinghouse for Blakely-related information.
In a case that foreshadowed Blakely, Kansas adopted a bifurcated system after the state supreme court in 2001 invalidated its system of presumptive sentencing guidelines, The original Kansas system had been similar to that used in Washington prior to Blakely.
The Vera Institute report mentions Kansas as a model for other states now looking to reform their systems of presumptive sentencing guidelines.
Barbara Tombs, the head of Minnesota's sentencing commission, said that state can function without making statutory changes, especially in the short term.
"If we never did anything with Blakely, we could continue to sentence people, just without the enhancements," Tombs said.
The other states whose sentencing structures are most similar to Washington's also have begun measured responses to Blakely.
- In Tennessee, Gov. Phil Bredesen (D) on July 22 ordered formation of a task force of state criminal justice officials, legislators, judges, lawyers and others charged with the task of identifying ways to preserve the use of enhancement factors in Tennessee's criminal sentencing law. The task force has until Nov. 15 to recommend legislation for the 2005 session.
- In North Carolina, the General Assembly was still in session when the Blakely ruling was issued and legislators ordered the state's sentencing commission to study the issue and form recommendations before the legislature reconvenes in January.
- In Oregon, an analysis of Blakely's impact is being rolled into a broader review of the state's public safety system ordered up by Gov. Ted Kulongoski (D) in February.
- In Washington, a working group has been set up to revise the state's sentencing laws.
Wilhelm, of the Vera institute, said he "absolutely" expects statehouses to be flooded with legislation aimed at tailoring state sentencing guidelines to bring them into compliance with Blakely, when legislatures reconvene next year.
"People seem to be waiting to act until the legislatures reconvene in the new year," Wilhelm said.