The World Turned Upside Down

As the Supreme Court steams towards the end of its current term, major decisions are beginning to come down. News accounts of today's action will no doubt focus on cases involving Dick Cheney and the death penalty. The most important in the long run, however, may be Blakely v. Washington, which declared Washington's sentencing scheme unconstitutional.

Blakely abducted his wife and later pled guilty to kidnapping, a charge that carried a 10-year statutory maximum sentence. The Washington sentencing guidelines, created by the state legislature, set the normal sentence for kidnapping at 49 to 53 months. The trial judge, not satisfied with that range, departed upward to impose a sentence of 90 months. Blakely appealed, arguing that the upward departure by the judge, made without a jury finding the facts on which it was based, was unconstitutional.

The Supreme Court today, to my great surprise, agreed with Blakely. In a 5-4 opinion, the Court held that the Sixth Amendment and the Court's earlier decision in Apprendi prohibit the enhancement of sentences based on facts other than those found by a jury or admitted by the defendant. As the dissenters point out, this calls the Federal Sentencing Guidelines, with which I wrangle each day, deeply into question. It may, as Justice O'Connor worries, sweep away the last 20 years of Federal sentencing law. That possibility is truly exciting.

They say that when the British surrendered at Yorktown, their military band played a popular tune called "And the World Turned Upside Down." Reading Blakely, I know how they must have felt.