Sentencing Guidelines Under Fire
By Patrice Brymner
July 3, 2004
In light of a recent U.S. Supreme Court ruling, the Massachusetts legislature will likely be re-drafting sentencing guidelines that have been pending since 1996. On June 24, the Supreme Court ruled Washington State's sentencing guidelines unconstitutional because they allow judges to increase a defendant’s sentence based on findings made by the judge instead of a jury (Blakely v. Washington, No. 02-1632). The Court found that such increases in sentence violate the Sixth Amendment right to trial by jury. The ruling is significant to Massachusetts because all three models now pending would allow judges to increase sentences based findings made by the judge rather than the jury.
The Massachusetts proposals are nearly identical to guidelines struck down in Washington. Under Washington's guidelines (enacted as part of the Sentencing Reform Act of 1981) every person convicted of a felony is assigned a "standard sentencing range," based on criminal history and the seriousness of his crime. The guidelines, however, permit courts to adjust a defendant's actual sentence upward or downward based on additional aggravating or mitigating factors. In the Massachusetts proposals, every case is also assigned a sentencing range, based on the defendant’s criminal history and the seriousness of his crime. All Massachusetts proposals also permit judges to adjust a defendant's actual sentence upward or downward based on additional aggravating or mitigating factors.
The Washington guidelines and the Massachusetts proposals differ only in procedural requirements for resolving factual disputes about aggravating circumstances. The Massachusetts proposals are looser, and therefore “less” constitutional. In Washington, a factual dispute over the presence of an aggravating circumstance must be found by a preponderance of the evidence (or more likely than not) standard. Under two of the Massachusetts proposals (H.3302/S.219 and H.2750), judges are not bound to any burden of proof, and could make factual findings based on any evidence submitted during the proceedings (including victim impact statements), without being required to conduct an evidentiary hearing at all. The third model, H.2749, would require an evidentiary hearing, but with no stated burden of proof – judges need only explain why the aggravating factors constitute a “substantial and compelling” reason for increasing the sentence.
It was the procedure for finding aggravating facts that the Supreme Court invalidated in Blakely v. Washington. The Court, by a 5-4, vote, held that the Sixth and Fourteenth Amendments require that any facts subjecting defendants to heightened punishment must be found beyond a reasonable doubt by a jury. The Court rejected a 2001 decision by the Washington Supreme Court holding that these rules did not apply to Washington's sentencing guidelines. Justice Scalia explained for the Court's majority that "When a judge inflicts punishment that a jury's verdict alone does not allow, . . . the judge exceeds his proper authority." Justices Breyer, O'Connor, and Kennedy all filed separate dissenting opinions, and were joined by Chief Justice Rehnquist.
The Court’s ruling may mean sweeping changes for several states. In Washington alone, some 645 sentences may now be challenged. Sixteen states have guidelines systems, eight of which operate like Washington's. Several other states use non-guideline systems that contain "aggravating fact" procedures that mirror Washington's and that may be invalidated by the Court’s ruling. One state, Kansas, originally enacted a guideline system like Washington's but later amended it to require that aggravating facts must be found beyond a reasonable doubt by a jury.
Federal sentencing guidelines are also now in serious doubt. Long despised by defense lawyers, federal guidelines were specifically untouched by the Supreme Court ruling. However, on June 18, the federal district court in Boston blasted the guidelines as unconstitutional for the same reason the Court invalidated Washington's guidelines. (Sentencing Memoranda: United States v. Green, No. 02-10054 (D. Mass. June 18, 2004)). In this advisory opinion, U.S. Chief District Judge William G. Young minced no words in challenging the validity of federal guidelines, charging that they are routinely manipulated, sometimes illegally, by prosecutors and used to punish defendants who exercise their right to trial by jury. Young wrote that “[t]he Department [of Justice] today has the power – and the incentive – to ratchet punishment up or down solely at its discretion,” adding that the Department uses its vast power to induce plea bargains and avoid trials. He further slammed the Justice Department, writing that “[m]ost of its methods are ‘legal,’ some are disfavored but winked at, one is flat-out illegal,” and “all are routine.”
(Ed. note- Both decisions referred to above are found elsewhere on this page. As well, a recent decision by a Utah federal judge found the federal sentencing guidelines unconstitutional, as reported in July 1, 2004 newspapers including the New York Times, also found elsewhere.)