Blakely, Apprendi, Booker, Begay, and Santos: judicial minimalism and the U.S. Supreme Court's ill-conceived attempts at a rational jurisprudence.

• Author: Yera, Jesus Evelio

1. Introduction A. Yolanda Blakely and Her Son, Ralphy II. Judicial Minimalism and Its Incorrect Application A. Booker and the Supreme Court's Attempted Fix B. Larry Begay and His Twelve Previous D.U.I. Convictions C. Santos and Dirty Money III. Conclusion Minimalism might be easiest in the short-run, but in the long-run, it can be extremely destructive. It can be destructive in part because it exports the burdens of decision to one's future self, in a way that might produce a great deal of trouble. However difficult a large decision may be, it may be best to make it, and sooner rather than later.

   --Prof. Cass R. Sunstein (2)

1. INTRODUCTION

   1. YOLANDA BLAKELY AND HER SON, RALPHY

   On the afternoon of October 26, 1998, Mrs. Yolanda Blakely was walking back from her mailbox at her home in Grant County, Washington when she was met by her estranged husband, Howard R. Blakely. (3) Blakely knocked Yolanda onto the ground, wrapped her mouth and head in duct tape, and bound her hands together. (4) Yolanda had earlier filed for divorce and was awaiting a hearing on various properties the Blakelys owned: Blakely demanded his wife dismiss the divorce proceedings and terminate the litigation relating to the properties. (6) Blakely warned her that if she did not cooperate, he would kill both her and the youngest of their three children, Ralphy Blakely, who was thirteen years old. (7) Blakely told Yolanda he was armed with firearms, ammunition, and knives, and forced her to get into the canopy section of his pickup truck.(8) Blakely placed his wife in a plywood box that resembled a coffin into which air holes had been drilled. (9) While in the box, Yolanda could hear Blakely placing items from the home into the truck. (10) On more than one occasion, Blakely opened the lid of the box, held a knife to her neck or nose, and inquired as to the location of specific items in the house. (11)

   When Ralphy arrived home from football practice, it was after dark, and he was met by his father in the driveway. (12) Blakely told Ralphy that his mother was in "great danger" and instructed him not to cause any problems. (13) As they walked past the pickup truck, Yolanda's cries could be heard from inside the box. (14) Blakely instructed Ralphy to drive his mother's car and follow the pickup truck; he warned Ralphy that if he "tried anything," Blakely would shoot through the box with a shotgun. (15) Eventually, with Blakely driving the pickup truck, in which Yolanda was held captive, and Ralphy following in his mother's car, they stopped at a truck stop. (16) Ralphy took the opportunity to scream for help. (17) After Blakely unsuccessfully tried to stop Ralphy from attracting attention, Blakely got back in the pickup truck and drove off. (18) Ralphy tried to hang onto the back of the truck in a failed attempt to release his mother. (19) Ralphy fell off the truck and was left behind. (20)

   Overall, Yolanda spent over four hours in the box. (21) Eventually, they arrived at a home abutting their property in Montana, and with the assistance of a neighbor, Yolanda was able to call for help. (22) Blakely was arrested without incident, and the State of Washington ultimately filed two charges of first degree kidnapping against him. (23)

   Blakely failed to convince a judge that he was incompetent and his guilty plea was accepted. (24) Specifically, Blakely pled guilty to amended charges of second degree kidnapping involving domestic violence with a deadly weapon enhancement and second degree domestic violence. (25) Because the sentencing court determined Blakely's offense involved deliberate cruelty and the commission of domestic violence in the presence of a minor, the court sentenced Blakely to ninety months of imprisonment, in excess of the top of his sentencing guidelines range, which was fifty-three months imprisonment. (26) Blakely appealed various issues and in 2004, the U.S. Supreme Court decided his Sixth Amendment right to trial by jury had been violated because he had been sentenced based upon facts that were found by a judge rather than a jury. (27)

   Blakely was essentially an extension of the principle announced by the Supreme Court several years earlier in Apprendi v. New Jersey, (28) that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (29) The Supreme Court applied the Apprendi principle in Blakely and held the imposition of a sentencing enhancement above the fifty-three month standard range indicated in Washington State's sentencing guidelines regime violated Blakely's Sixth Amendment rights because the facts supporting the enhancement were neither admitted by Blakely nor found by a jury beyond a reasonable doubt. (30) Despite the similarity between the Washington State and the federal guidelines, the Supreme Court only summarily stated in Blakely that "the Federal [Sentencing] Guidelines are not before us, and we express no opinion on them." (31)

   The U.S. Supreme Court's decision in Blakely was a watershed moment in the criminal sentencing context, not only in the Washington State courts, but also in a number of other states that had similar sentencing guidelines procedures. (32) Additionally, because the Washington State sentencing guidelines were similar to the federal sentencing guidelines, despite seventeen years of case law upholding the constitutionality of the federal guidelines, it was evident to almost everyone that the federal courts were facing a "sea change." (33) Consequently, a plethora of federal district courts took up the issue of whether the federal sentencing guidelines were no longer applicable to the defendants awaiting sentencing before them. (34) Many of those judges found that Blakely did apply to the federal sentencing guidelines, and in some cases, they concluded the case rendered those guidelines unconstitutional. (35) By leaving such an important question unanswered, federal criminal cases were thrown into disarray for several years as appeals and post-conviction challenges made their way through the system.

   But the decimation of the federal and some state sentencing structures is only one of the areas of concern. Over the last ten years, the United States Supreme Court has not only reversed course in some crucial areas of federal criminal law, but has issued rulings so incomplete as to be almost intellectually deficient. (36) These unfinished decisions have then caused disarray in the federal courts. (37) Utilizing several examples in addition to Blakely, this Article will address some areas where the Court has failed to act in a judicially rational manner in the hope that those sorts of errors can be avoided in the future. (38)

   It is important to recognize, while looking at these areas, that the analysis is not outcome-dependent. For example, whether the federal sentencing guidelines stood or fell, the U.S. Supreme Court should have answered some of the very questions the Court itself created. Instead, it completely or partially eviscerated the sentencing procedures of at least a dozen states, (39) seriously called into question the federal sentencing scheme, (40) and provided no guidance on how to move forward. (41) Further, even when the Supreme Court later attempted to fix the sentencing dilemma it had created, as discussed below, the Court generated yet another set of formidable and serious questions, which it did not answer. (42)

   The obvious response to this criticism is the old maxim that the Court should only decide the issues before it. (43) But concerns of standing and ripeness do not require that if the Court should decide the issue before it in a way that raises other innumerable questions, it must then leave those questions it created unanswered. (44) This is exactly what the Court has done in a judicially irrational fashion as will be illustrated herein. (45) Lastly, we should try to look at this issue in a dispassionate way that does not raise the specter of hyperbolic chants and labels such as calling judges judicial activists. (46) Whatever the political affiliation of the U.S. Supreme Court's membership, the issues before them should be decided responsibly and in a fashion that is designed to lead to judicial rationalism and jurisprudential stability.

   The approach the Court has taken in the cases discussed herein has regrettably resulted in a waste of judicial, prosecutorial and defense resources at a time when the United States has more individuals in prison than any other industrialized nation in the world. (47) More importantly, these decisions have left the law in a state of deliberate confusion and have harmed the individual defendants, many of whom are minorities whose rights are already fragile. The Court's unfinished decisions have also created a state of uncertainty that has been equally damaging to the victims of crime and to the integrity of the judicial system as a whole.

2. JUDICIAL MINIMALISM AND ITS INCORRECT APPLICATION

   The concept of judicial minimalism has been expressed by Professor Cass Sunstein in a number of works. (48) Sunstein defines the concept as "the phenomenon of saying no more than necessary to justify an outcome, and leaving as much as possible undecided." (49) According to Professor Sunstein, these "minimalists" write "no more than necessary" and "resolv[ed] the largest issues of the day ... as narrowly as possible." (50) When applied to the process of judicial decision making, this operational definition has been interpreted to mean that a decision has to "result from the (apparently) intentional choice by a majority of the Justices ... to decide a case on the narrowest and shallowest grounds reasonably open to them, even though broader and deeper rationale(s) were reasonably available." (51)

   As an example of where judicial minimalism has its place in Supreme Court jurisprudence, Professor...