Steven L. Chanenson, the Next Era of Sentencing Reform

• Publication year: 2005

EMORY LAW JOURNAL

Volume 54 WINTER 2005 Number 1

ARTICLES

THE NEXT ERA OF SENTENCING REFORM

Steven L. Chanenson^*

Criminal sentencing is in turmoil. The Supreme Court has revealed a new understanding of the Sixth Amendment. The very foundation of many sentencing schemes now seems unstable. Yet, we still have the ability to craft a rational, balanced approach to sentencing. The rules may have changed, but the game is the same, and it is winnable.

In Blakely v. Washington,¹the U.S. Supreme Court delivered a legal haymaker that has sent the criminal sentencing world reeling. The Court had previously held that the Sixth Amendment requires a jury to find all facts (other than the existence of a prior conviction) that increase the statutory maximum punishment.²Blakely concluded that the tops of Washington State's sentencing guideline ranges are themselves so-called "statutory maxima," which under the Sixth Amendment can only be transcended based on a jury's factual finding or a defendant's admission of an aggravating factor.³

Before Blakely, several states and the federal government supplied structure or guidance, often in the form of sentencing guidelines, for judges imposing criminal sentences. To varying degrees, these guidelines systems relied on facts that the judges found by a preponderance of the evidence, a procedure the

Supreme Court had approved time and again.⁴Many guidelines schemes provided presumptive sentencing ranges for typical cases. The top of the presumptive range was below the traditional statutory maximum for the offense of conviction. The actual sentence imposed might be higher or lower than the presumptive range, in part because of judicially found aggravating or mitigating facts. Blakely effectively invalidated key aspects of several sentencing systems because these systems permitted judges to impose sentences higher than the presumptive guideline range based on facts found by the judge, using the preponderance of the evidence standard, instead of by the jury, using the beyond a reasonable doubt standard.⁵

In the words of the Ninth Circuit, Blakely "worked a sea change in the body of sentencing law."⁶Many states are struggling to determine what parts of their systems survived Blakely and how they should respond. Because Blakely concerned a sentence from Washington State-where the legislature directly passed the sentencing guidelines-the case did not squarely resolve the fate of the Federal Sentencing Guidelines,⁷which are largely a creature of rulemaking by the U.S. Sentencing Commission.⁸In the months immediately after Blakely, federal courts divided over the constitutionality of the Federal Sentencing Guidelines,⁹inducing the U.S. Supreme Court to grant certiorari and expedite argument in United States v. Booker and United States v. Fanfan.¹⁰Meanwhile, chaos reigned in many state and federal courts across the land.

Regardless of what the Supreme Court decides in Booker and Fanfan, Blakely presents legislatures, courts, and sentencing commissions with an opportunity to re-examine and improve their sentencing systems. As such, Blakely can be a lever or a tool to advance the law. We have a natural opening to ask ourselves what sort of a sentencing system we should have. Which actors should posses what kind and degree of discretion? This is an opportunity many legislatures appear determined to take. For example, Senator Orrin Hatch, Chairman of the Senate Judiciary Committee, seems poised to take federal legislative action regardless of the Supreme Court's decisions.¹¹With the ferment of sentencing reform in the air, now may be the time not only to revamp the sentencing systems Blakely has damaged or destroyed, but to usher in the next era of sentencing reform as well.¹²

Yet are alternatives available? The Blakely dissenters predicted "disastrous" consequences and the destruction of almost a quarter century of progress.¹³For example, Justice O'Connor lamented that "[o]ver 20 years of sentencing reform are all but lost."¹⁴Not only is Justice O'Connor overreacting, but she may be fundamentally wrong. All is most assuredly not lost. In fact, history's verdict on Blakely may be kind if legislatures seize the opportunity before them.

Viable options exist. The choices that have already begun to percolate to the top of the legislative, judicial, and academic agendas include fully advisory guidelines, boundless guidelines, inverted guidelines, and guidelines with extended jury factfinding.¹⁵While no sentencing system is perfect, each of these popular contenders has substantial drawbacks that outweigh their advantages.

I offer a different way to approach sentencing. Capitalizing on the window of opportunity afforded by Blakely, we can devise a better sentencing system by remembering some core principles that have animated modern sentencing reform. Legislatures should adopt what I call "Indeterminate Structured Sentencing" ("ISS"), an indeterminate sentencing system (that is, a system that includes discretionary parole release authority) in which a Super Commission promulgates two sets of coordinated guidelines that constrain both sentencing and release powers. This balanced approach rejects both extremely uniform sentences and extremely individualized sentences while pursuing relative proportionality in a Blakely-compliant way.

An ISS system respects judicial sentencing judgment while also acknowledging the value of structural checks and balances. It permits severe sentences when judges believe them appropriate but also limits the pressure to increase sentences across the board. Although the ISS model draws on aspects of various sentencing systems, it is a distinctive hybrid approach. ISS sentencing guidelines channel a judge's decisional authority while preserving important nodes of judicial discretion. Through its parole release guidelines, ISS encourages the predictable exercise of discretionary, yet modestly conceived, parole release authority. Nevertheless, ISS parole release guidelines allow for departures when appropriate, and provide for some form of appellate review. Thus, ISS satisfies Blakely while simultaneously increasing practicality and justice.

This Article proceeds in four parts. Part I explores the fundamental elements of sentencing. It hones sentencing's common language and presents tools for evaluating competing sentencing systems. Part II demonstrates how Blakely has created both short-term chaos and long-term opportunities for sentencing reform. Part III evaluates four popular possibilities for sentencing systems after Blakely, and finds them all suffering from significant limitations. These flaws range from too much judicial discretion, which can invite invidious disparity, to too little judicial discretion, which can result in unwarranted uniformity. Each of these possibilities fails to provide sufficient assurances that a resulting sentence is likely to be relatively proportional to the crime and criminal involved. Finally, Part IV introduces the new ISS model. An ISS system affords greater confidence that sentences will be fair and just and provides a workable balance between uniformity and individualization while effectively pursuing relative proportionality.

I. FUNDAMENTAL ELEMENTS OF SENTENCING

To understand what Blakely has done and to see how the various state and federal sentencing systems could or should respond, this Article employs a common language to describe these systems and crafts a functional model to evaluate them. Armed with those tools of common language and evaluation, it is possible to understand the broad historical contours of American sentencing that set the stage for Blakely.

A. A Common Descriptive Language

To discuss sentencing systems effectively, a common descriptive language is essential. Even though a common sentencing language exists,¹⁶it is often badly mangled. Sentencing systems frequently bear the label of "determinate" or "indeterminate." Too frequently, however, courts and commentators apply those terms imprecisely or improperly, leading to confusion. This problem, which apparently has been brewing for some time,¹⁷has become more acute in the immediate aftermath of Blakely.¹⁸Arguably, even the Supreme Court in Blakely deployed the terminology imprecisely.¹⁹It need not nor should not be that way. We need once again to sharpen our terms.²⁰

The key difference between indeterminate and determinate sentencing systems is uncomplicated. Indeterminate systems use discretionary parole release while determinate systems do not.²¹Determinate and indeterminate sentencing schemes can take various forms. Either sort of system may be discretionary or nondiscretionary. Discretionary systems-be they determinate or indeterminate-may be guided or unguided.²²"Guided" or "unguided" systems may also be referred to as "structured" or "unstructured."²³

In setting a determinate sentence, a judge announces a particular length of sentence in a system that does not have parole release but may offer other sentence reductions. "A determinate sentence is simply a sentence for a specified length of years. It does not necessarily indicate that the offender will serve all of those years."²⁴Through the award of so-called good time or earned time, a jurisdiction employing a determinate sentencing regime may release a defendant before the expiration of the announced sentence.²⁵If there is no possible reduction in the time served, the determinate sentence is called a "flat sentence."²⁶"Although a flat sentence must always be determinate, not all determinate sentences . . . are flat."²⁷In fact, many jurisdictions with determinate sentencing systems have nonflat sentences because they offer some degree of good time or earned time reductions in time served.²⁸

A determinate system may be discretionary or nondiscretionary. A discretionary, determinate system allows a judge to pick the actual sentence (one number, such as ten years) from a statutory range of punishments. In a...