Monday, September 27, 2004

The WLF Brief - Trying to Unlock Blakely's Potential

Last month, the Washington Legal Foundation hosted a useful Blakely conference in Washington, DC (details here). Today, I’m offering some thoughts on the WLF’s amicus brief, which focuses on the policy side of the Blakely dispute.

The first part of the WLF brief contends that the guidelines are invalid under Blakely, offering some arguments for why the guidelines create “legal rights,” which the WLF says means a jury right.

The second part of the brief is the policy analysis, at times making normative arguments for reform of the guidelines. Here, the WLF appears to invite the Court to force Congress’s hand into debating sentencing reform. On page 22, the amici state, “the partial or complete invalidation of the current federal sentencing scheme on Blakely grounds would give Congress the broader opportunity to address the many fundamental flaws and unfairness in the harsh federal Guidelines.”

What follows is a brief discussion of both sections of the WLF brief.

The Guidelines Create Legal Rights

On page 7, the WLF begins the argument that the guidelines create legal rights which the 6th Amendment protects. Seizing on language from the Blakely decision which indicates that determinate sentencing schemes create such a right, the WLF argues that the guidelines both cabin judicial discretion and simultaneously create legal rights to jury deliberation.

To the “legal rights” claim, on page 14, the WLF argues that the current construction of the guidelines lacks “structural democratic constraints.” Tying together some academic work that explores the democratic function of the jury and the Apprendi ruling, the amici argue that democratic values favor jury determination of the facts necessary for punishment. (Doug Berman has offered his thoughts, as well as those of Professor Bill Stuntz, on democracy and Blakely.)

A Ruling for the Respondents Would Unlock Sentencing Reform

What distinguishes the WLF brief is that it does not address the severability question presented in Blakely. Instead, they chose to focus on the possibilities for sentencing reform which could blossom from a ruling for the respondents. The WLF’s bottom line is that the Blakely decision “present[s] an opportunity to replace the harsh and irrational Guidelines with more humane and even-handed sentencing policies and procedures.”

One possibility is that Congress will adopt a sentencing scheme like the one found in Kansas, which the WLF appears to favor. On page 21, the WLF says that the Kansas scheme could “readily be adapted for the federal context.” The authors point out that if the federal government implemented a system like the one in Kansas, it would greatly simplify the federal sentencing process. While many consider simplifying the federal sentencing system a plus, many do not – and of the people in the latter category, many of them are in Congress. The Kansas system may be easy to administer, but ease of administration is a double-edged sword when it comes to federal reform efforts.

I’ve discussed similar reform options and the potential reform in a forthcoming publication of my own which you can access here. My essay is more of a realpolitik look at Blakely’s potential for reform but it fits nicely with the second half of the WLF brief.

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