The Effect of Blakely v. Washington on State Sentencing

When the United States Supreme Court decided Blakely v. Washington in 2004, Justice Sandra Day O'Connor thought the Court had overturned several state sentencing systems: "What I have feared most has now come to pass: Over 20 years of sentencing reform are all but lost, and tens of thousands of criminal

Significant sentencing changes indeed appeared to be on the horizon. The Supreme Court's Blakely decision presaged changes in both sentencing procedures and sentencing statutes. However, that has not happened in many states. Instead, some state courts have held that Blakely simply does not apply to their states' sentencing systems, while others have minimized the impact by holding that it affects only a fraction of criminal cases.

Was Justice O'Connor's argument a merely histrionic, gloom-and-doom prediction? Or did she accurately foresee an outcome unsettled only by state courts' misinterpretation of the Blakely holding? To assess the true impact of Blakely, we must attempt to answer two questions: 1) Does Blakely apply to a given state's sentencing system? 2) If it applies, what does Blakely require? The first question posed little doubt, at least initially. Justice O'Connor helpfully listed ten affected states as examples.1 Blakely also seemed rather clear about its effect. It forbid the states from increasing a punishment beyond the "maximum" without a finding beyond a reasonable doubt by a jury of a fact that warrants greater punishment. The "maximum" sentence is not literally the highest penalty allowed by statute. Instead, it is the punishment that can be imposed based on the jury verdict alone, i.e., without finding any facts other than those decided by the verdict.2 (For further discussion of Blakely, see accompanying Legal Note in this issue.)

The effect on sentencing seemed plain: To increase punishment beyond the "maximum," juries and not judges had to find the facts. Because judges decided the facts in so many states, large numbers of sentencing reversals seemed inevitable. O'Connor, who predicted that result, was also prescient in predicting that the federal sentencing guidelines also would fall under the Blakely ax, as happened with the ruling in United States v. Booker (2005). Not all state courts responded with wholesale reversals of legions of sentences, however. Instead, some courts narrowed Blakely almost to insignificance. Others denied that the Supreme Court's opinion affected any of their states' criminal cases. If those courts are correct, then Blakely is much ado about almost nothing, and O'Connor's argument either badly misjudged the effect or amounted to mere bluster.

THE STATES RESPOND TO BLAKELY

We now turn to look at Blakely's effect in several states. Among those defying O'Connor's prediction are Tennessee, California, and Arizona.

Tennessee. In State v. Gomez (2005), the Tennessee Supreme Court held that Blakely did not apply to Tennessee's sentencing statutes. Yet that state's sentencing scheme is indistinguishable from the system struck down in Blakely. If anything, the Tennessee system is affected more than most because in most Tennessee felony cases, the presumptive sentence is the minimum sentence, not a sentence in the middle of a punishment range. When both aggravating and mitigating facts are present, the sentence can depart from the minimum only if the judge finds "enhancement factors." For most Tennessee felonies, then, Blakely should have swept within its reach all cases involving punishment greater than the minimum.

That the Tennessee Supreme Court might have erred is suggested by the fact that both sides in Gomez-the defendant and the attorney general-filed petitions for rehearing. Both argued that Tennessee's system was not only subject to Blakely, but also in violation of the Sixth Amendment. The Tennessee Supreme Court nevertheless denied the petition for rehearing.

A petition for writ of certiorari in Gomez would surely tempt the United States Supreme Court. For example, the Tennessee court argued that its sentencing statutes were not subject to Blakely because they only authorized increased sentences if judges found aggravating facts but did not mandate harsher sentences. Yet the Supreme Court had said in Blakely that this difference does not matter: "Whether the judicially determined facts require a sentence or merely allow it, the verdict alone does not authorize the sentence" (at 305, n. 8). And neither Blakely nor its related predecessor, Apprendi v. New Jersey (2000), involved a mandated sentence.

The Tennessee court also relied on the more recent decision in Booker to argue that Blakely does not apply. Yet Booker had nothing to do with state sentencing: It addressed the federal sentencing system, and that system is very different from Tennessee's and most state schemes. Law professor and sentencing blogger Doug Berman (2005) says without exaggeration that Gomez "rest[s] on a complete misunderstanding of Apprendi and Blakely."

California. California joined Tennessee as a state in which Blakely will be disregarded when, in People v. Black (2005), the California Supreme Court held that Blakely does not apply to California sentences. The court declared that the federal Constitution is not implicated when a judge exercises discretion to increase a sentence based on facts found by the judge.

The California decision appears directly contrary to Blakely, the gist of which was that judges could not decide facts used to increase sentences. The California sentencing system is essentially indistinguishable from the system in Washington state at issue in Blakely: In both, the judge finds aggravating factors, and then uses them to increase the sentence. Yet the California court declared: "The United States Supreme Court has not yet addressed a system that is comparable to California's" (at 542).

The California Supreme Court's opinion is similar to Tennessee's in some ways. For example, in Block, the California court argued that a California judge's broad sentencing discretion distinguished California sentencing from the Washington system invalidated in Blakely. However, that misstates the issue. Blakely is concerned with the finding of facts on which sentencing is based, not with the discretion of the judge in choosing punishment after those facts are found. And Black also argued that the maximum sentence is literally the maximum punishment, and yet the rejection of that proposition is at the very core of Blakely.

Arizona. In addition to states like Tennessee and California, in which Blakely is to be disregarded, states like Arizona have whittled the decision to a splinter. Arizona holds that only one sentencing fact need go to the jury and that any additional facts can, consistent with Blakely, be decided by the judge.

Arizona's case, State v. Martinez (2005), rests on three legs. First, the only fact "legally essential" to punishment beyond the maximum is the single fact that authorizes a sentence beyond the maximum (at 623). Second, even if the sentencing judge relies on several facts to increase the punishment, only the sentence to which the defendant is "exposed," not "the actual sentence imposed," counts (at 624). Third, a fact exempt under Blakely from a jury finding-such as a fact implicit in the guilty verdict or a prior conviction-is as good as a jury-found fact (at 620).

After the Supreme Court had held that, in a death-penalty case, all aggravating facts must be decided by the jury (Ring v. Arizona, 2002), the Arizona Supreme Court said that not just one but "all" aggravating facts that are used in imposing the death penalty must be decided by a jury (State v. Ring, 2003). However, the court did not apply its earlier opinion in Martinez because capital sentencing is different and because the more recent decision in Booker shows that only one fact need be found by a jury.3

The Martinez approach greatly restricts the scope of Blakely. If the Arizona court is correct that only one fact need be found by a jury, then Blakely does not apply in the great majority of felony cases. Most persons accused of felonies are prior offenders, and thus a prior felony conviction can ordinarily be proved to the judge. Nor would Blakely apply in any case in which the fact used to increase the punishment was implicit in the verdict of guilt on any charge. Because the list of aggravating factors in Arizona sentencing is non-exhaustive,4 any fact inherent in a guilty verdict on any other charge may suffice. Finally, as the court suggested in the companion case of State v. Henderson (2005), Blakely may not affect the sentence even if no jury findings were made, and even if no jury-exempt facts were found, if the court can assure itself that a jury would have found the aggravating fact had it been asked to do so. This is much less than state law generally requires, which is "a showing, beyond a reasonable doubt, that the defendant would have received the same sentence had the rule requiring jury fact-finding been followed" (Wool, 2005:6).

Is there more than a sliver of Blakely remaining if the Arizona court was correct? The Arizona court thinks Blakely applies to no cases involving prior felons. It applies to few if any cases in which defendant is convicted of multiple charges. And it applies to no case in which a court is willing to second-guess that a hypothetical "reasonable jury" would have found one of what may be several alleged aggravating circumstances.

The other side of the Martinez argument is that one fact is not enough. All facts used in increasing a sentence must be submitted to a jury, as in Ring v. Arizona (2002). When an increased sentence is the product of several aggravating facts, no single fact is the identifiable source of the increase. And it is not the hypothetical sentence to which a defendant is exposed that counts, as the Arizona court argued, but the sentence actually imposed.

The Arizona, California, and Tennessee opinions rather shakily rely on Booker to reject or limit Blakely. Booker addressed the very different federal sentencing system, and all three states' opinions overlooked the differences. In the federal system, some sentencing-relevant facts are listed in the guidelines. If these facts are found, the range of the sentence is shifted upward. But not all sentencing-relevant facts are listed. Facts that are not on the list can be decided by a judge in choosing a sentence within the range.

The federal judge's ability to determine some sentencing facts is not, however, an invitation to allow state judges to decide oil sentencing facts. If that were so, Blakely would be meaningless. Instead, a federal judge can decide only those facts that move the sentence up or down within the range after the jury-found facts establish the range. In other words, the facts that a judge can consider are limited to those not on the list of range-shifting facts. If they are not on the list, those facts cannot be used to increase the sentencing range and, therefore, cannot increase the penalty beyond the Blakely maximum.

In contrast, state systems have lengthy lists of potentially aggravating factors, and even use "catch-all" clauses to expand them to any fact that could bear upon sentencing; the Washington statute involved in Blakely had such a clause. Such facts can increase the sentence beyond the Blakely maximum. If they can, according to Blakely, they must be submitted to a jury. Thus, a fact that cannot be used to increase the sentence beyond the Blakely maximum, and can only affect the sentence within the range established either by a jury verdict or by a jury-found aggravating factor, is different from a fact that increases the sentence beyond the maximum. The very core of Blakely forbids a judge from finding the latter. Any fact that is encompassed by a state statute as a factor in aggravating a sentence or enhancing the range of sentence is a Blakely-eligible fact.

Neither Blakely nor the earlier Apprendi decision (2000) offer much aid to the theory that only one fact is Blakely compliant. Both of these decisions involved a single sentencing aggravator. Thus, neither decision contains a direct answer to assertions that having found one sentencing fact, state judges may find any other sentencing facts. Other than in the death-penalty context (see Ring v. Arizona, 2002), the Supreme Court has not reviewed a sentence relying on multiple aggravators.

Other questions about the scope of Blakely remain unresolved, at least by the U.S. Supreme Court. One is whether Blakely error is subject to fundamental-error review or harmless-error review. Another is whether punishment decisions other than the length of a single sentence are affected by Blakely. For example, does a decision to stack sentences for multiple punishments by making them consecutive rather than concurrent "increase" the sentence for Blakely purposes and require a jury finding? In the case of punishments for multiple offenses, the Blakely rule seems inapplicable because the court is not increasing a punishment for either offense but is only determining how the punishment is to be served for separate offenses. (This conclusion was reached in Edmonds v. State (2005), but for a different reason: The court said that the authority to impose consecutive sentences does not rest on a finding of additional facts.)

Also unanswered is whether Blakely applies to sentences imposed before that case was decided. The answer is probably not (see State v. Febles, 2005). Still another question is whether a decision not to impose available probation or one to render a defendant ineligible for probation is subject to predicate jury findings. Does Blakely encompass transfers of juveniles to adult court, which imply that the more severe adult punishment is selected?

As Blakely also appears not to apply to facts admitted by the defendant, what constitutes an admission? Must this be a formal in-court admission and, if so, is the defendant entitled to the same protections as when a guilty plea is entered? If it need not be formal, can the admission be a pretrial statement made to police or a statement to a writer of a presentence report?

Obviously, only the U.S. Supreme Court can resolve these questions definitively. But if the highest courts of California, Tennessee, and Arizona are correct, only a wisp remains of Blakely. Its impact on state court sentencing would be "little or none," not the sentencing revolution predicted by Justice O'Connor.

If Blakely does apply, and requires that all sentencing facts be submitted to a jury, then its impact will be quite dramatic. First, Blakely may provoke legislative changes to sentencing. Second, the case will necessitate changes to sentencing and other criminal-case procedures.

THE LEGISLATIVE RESPONSE

One approach to Blakely is to reform state sentencing law to remove it from the ambit of the Supreme Court's decision. For example, a legislature could make sentencing wholly discretionary within a broad range. Blakely approved such a system by distinguishing a prior case, Williams v. New York (1949), as one in which the judge could have sentenced the defendant "giving no reason at all" (at 304). No particular facts would be required for a judge to increase a sentence beyond the minimum. Because no facts would be found, no jury findings of those facts would be required. However, such a strategy would greatly increase judicial discretion and result in disparate sentences for similarly situated defendants-a result that many state legislatures might not want, and a reason why determinate-sentencing systems were adopted. As Justice O'Connor said in her Blakely dissent, "The 'effect' of today's decision will be greater judicial discretion and less uniformity in sentencing" (at 314).

At the opposite extreme is a system without judicial discretion. Mandatory fixed sentences would not implicate Blakely, but they would be so rigid as to cause frequent injustice. A more flexible variation was suggested by Justice Breyer's dissent in Blakely, in which he proposed a mandatory maximum with only downward departure. Because downward departures from the prescribed sentence need not be justified by jury-found facts, this approach might satisfy the Supreme Court.

Another response would narrow Blakely. A state could confine the facts that increase a sentence beyond the Blakely maximum to a short list. The listed facts would increase the sentencing range, ? la federal sentencing, but any additional facts could be considered by the judge without a jury finding because they could not increase the range. At least one state, Arizona, has adopted the one-fact-is-enough approach, but this depends on whether one fact is indeed enough to satisfy Blakely, and the Supreme Court has the final say about that.

PROCEDURAL CHANGES

Although Blakely affects state sentencing procedures, the decision does not affect every criminal case. With the exception of a single collateral consequence discussed below, the decision does not affect sentencing in the more than 95 percent of all felony cases that are not tried (Wool and Stemen, 2004:8). And although Blakely may affect sentencing procedure in many cases, it does not affect the sentencing outcome in cases in which the sentence is at or below the Blakely "maximum." Those cases constitute between 91 and 98 percent of felony cases (Wool and Stemen, 2004:8). And prosecutors retain the option of minimizing the impact merely by forgoing aggravated sentences.

To add further perspective to Blakely's scope, the opinion requires only that juries be retained past the culpability phase to decide sentencing facts. Does it burden state courts significantly to shift the decisions from judges to juries? Not in the experience of Kansas, which responded by implementing Blakely rather than by limiting it. "Neither prosecutors nor the defense bar have raised strong concerns about the justice or efficiency of this procedure," and no concerns have arisen that it is significantly burdensome (Wool and Stemen, 2004:7-8). An observer has remarked, "The cost of a bifurcated trial does not appear to be substantially more than the cost of a regular jury trial. The jury is already empaneled; most of the extra time is devoted to the additional instruction the jury would require" (Skove, 2004:3).

Nevertheless, courts are making procedural changes. The changes extend beyond the obvious adaptation of having juries decide sentencing facts. For example, guilty pleas have been altered. A guilty plea waiving the right to jury trial on guilt might not waive the right to a jury determination of sentencing facts. Accordingly, prosecutors are drafting plea agreements, and courts are holding hearings, to accept pleas with two separate waivers of a jury trial.5 Otherwise, plea bargaining seems unaffected by Blakely, as neither side obtains a significant negotiating advantage.

Blakely does not settle whether aggravating factors must be alleged in an indictment, although Justice O'Connor, in dissent, thought that aggravating factors "must now be charged in an indictment" (at 318). The federal constitutional right to an indictment has not been applied to the states (Hurtado v. California, 1884). However, considering the reasoning of Blakely that aggravating facts are indistinguishable from offense elements, an argument can be made that aggravating facts must be alleged in whatever charging document is used so that defendants receive the same notice that the federal constitution requires when the offense is alleged. That argument, however, is not necessarily successful.6

There are other questions Blakely does not answer. For example, does it affect the formality of sentencing hearings, and, if so, how? If aggravating facts are equivalent to offense elements for purposes of the Fourteenth Amendment right to a jury trial, are other protections of the Fourteenth Amendment also implicated? For example, does the Sixth Amendment right to confront witnesses also apply? Must sentencing hearings use the same evidentiary rules that apply in the trial of guilt?

Another question is whether guilt and sentencing trials can be combined. Although in theory they might be, the custom of bifurcating the guilt and sentencing phases is already ingrained in much of the criminal-law culture. Blakely-affected states have been trying guilt to juries and then holding sentencing hearings before a judge. The past practice, together with the potential prejudice of presenting facts related not to the offense but to the defendant's character, suggest that unitary trials are unlikely to become the prevailing mode.

Sentencing behavior of judges might also be affected. For example, a sentencing judge might attempt to facilitate harmless-error review by declaring that the judge would have imposed the same sentence with fewer than all of the potentially aggravating factors. Judges also might hesitate to consider general sentencing considerations, such as the protection of the public, for fear that such a factor could be relabeled as a Blakely-eligible fact.

A fork lies ahead in the road paved by Blakely. Does Blakely truly change state sentencing systems? If it does, how far-reaching are those changes? These questions are at once fundamental and troublesome, inviting if not necessitating resolution by the Supreme Court of the United States. The Court took what may be the first step on a long path by granting review of a state decision from Washington that Blakely error is structural error not subject to harmless-error review (State v. Recuenco, 2005).7 It would hardly be surprising to see many more cases reviewed to determine just how accurate were Justice O'Connor's predictions about the effect of Blakely.