Blakely, What Hath Thou Wrought?

As professor Berman points out over at Sentencing Law and Policy, today is the first birthday of the Supreme Court's Blakely decision, which set the world of criminal sentencing on its ear. Looking back at my post from this day last year, it's hard to believe that in one year we've come so far and gained so little.

I went back at work and looked through some of the Email that flew around the federal defender world in the days following Blakely. At the time, there was a palpable feeling that something really had changed that that, for once, our clients might be the recipients of good news rather than bad. Within days, district courts across the country (including my own in WV) were making the logical step of applying Blakely to the Federal Sentencing Guidelines. Although opinions differed about what to be done, many of us thought the brave new world of federal sentencing would be a good thing. There was hope that sentences enhanced by allegations of which a defendant was acquitted, where drug sentences were routinely jacked up by the use of unidentified jailhouse snitches and "ghost dope," and where federal defendants convicted of one crime weren't actually sentenced for state offenses for which they were never charged.

That great hope lasted through the holidays, as the Supreme Court first granted cert and then heard oral arguments in Booker and Fanfan. But in January, when the Court handed down its fractured decision in Booker, all hope was lost. The Guidelines were saved, thanks to the swing vote of Justice Ginsberg and the tortured logic of Justice Breyer. Yes, they are now advisory. But in effect, they operate as they always did, relevant conduct, ghost dope, and all. Some defendants have benefited from the new discretion given to the district courts, but some have faced harsher sentences, too. And to top it off, without waiting for a decent time period to pass in which to collect data, members of Congress and Dubya's administration are already beating the drum for more mandatory minimum sentences and taking away any discretion of judges to impose lower sentences (without taking away any discretion to impose higher sentences, of course).

If I sound pessimistic about this, I am. I vividly remember reading Blakely, and immediately tracking down my secretary (our appellate procedure guru) to find out what we needed to do to file a new brief with the Fourth Circuit addressing this new case. The client I thought of first was convicted of being a felon in possession of a firearm. He was sentenced, however, as if he was convicted of attempted first degree murder because of what he did with the gun (and for which he was already convicted and punished in state court). Blakely seemed manna from heaven - Scalia even used that situation as an example of the horribles of judicial factfinding. I should have known better - I don't believe in heaven, after all.

Berman asks on this auspicious day whether the sentencing world is better off now than before Blakely. I agree with him that the debate that Blakely and Booker jump started about sentencing is a good thing. And in the states, which seem to be more level-headed about sentencing reform, Blakely may have a heavy impact. But in the federal system, blunted by Booker, Blakely is a shadow of it's former self. In the end, it may make things worse if Congress overreacts to perceived "leniency" in post-Booker sentencing. Would that be worse than a pre-Blakely world? I dunno, but I imagine we'll find out soon enough.

A couple of months after Blakely, as the Guidelines seemed doomed to the dustbin of history, Berman put up this graphic of Godzilla (labeled Blakley) chomping down on a helpless commuter train (labeled Federal Sentencing Guidelines). I took it, added my own Zappa-inspired caption ("Bullets can't stop it! Rockets can't stop it! They may have to use nuclear force!"), and hung it on my office door. I took it down today and fed it through the shredder. Metaphorically, it seemed like the right thing to do.