SEATTLE UNIVERSITY LAW REVIEWVolume 28, No. 4SUMMER 2005
An Exceptional Case: How Washington Should Amend Its Procedure for Imposing an Exceptional Sentence in Response to Blakely v. Washington
Jason Amala(fn*) and Jason Laurine(fn**)
I. Introduction
On June 24, 2004, the United States Supreme Court declared in Blakely v. Washington(fn1) that a jury, not a judge, must make all factual findings(fn2) that form the basis for any punishment imposed on a defendant.(fn3) Blakely clarified the principle announced in Apprendi v. New Jersey(fn4) that 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.(fn5)
The Blakely case examined Washington State's procedures for imposing an "exceptional sentence." Washington allows a judge to impose an exceptional sentence when a defendant's conduct involves an "aggravating factor" and that conduct provides a substantial and compelling basis to increase the defendant's punishment.(fn6) The Court ruled that, contrary to Washington's practice of allowing a sentencing judge to determine whether a defendant's conduct satisfies an aggravating factor,(fn7) a jury must make all factual findings that increase a defendant's punishment.(fn8) Accordingly, the Court ruled that Washington's existing system was unconstitutional.(fn9)
The Blakely decision sent Washington legislators, judges, prosecutors, and defense attorneys scrambling to find a solution that would address the Court's concerns.(fn10) Although Justice Breyer's dissent identified four possible solutions for Washington and other states affected by the Blakely decision,(fn11) the discussion in Washington focused on two possible solutions: a "judicial advisory" model and a "bifurcated trial" model.(fn12) During the 2005 Washington legislative session, the former was embodied in Substitute Senate Bill 5476 ("S.S.B. 5476") and the latter was embodied in Senate Bill 5477 ("S.B. 5477").(fn13) S.S.B. 5476 was referred to the Senate Ways and Means Committee and was not passed during the 2005 legislative session.(fn14) S.B. 5477, on the other hand, was passed by the legislature on April 14, 2005, and was signed into law by Governor Christine Gregoire on April 15, 2005.(fn15)
This Note reviews the Blakely decision and the Washington Legislature's response in S.B. 5477. Part II discusses the problem that Blakely created for Washington's sentencing guidelines system. Part III analyzes the judicial advisory and bifurcated trial proposals and explains why Washington wisely adopted the bifurcated trial approach. Part IV identifies key issues that are raised by using a bifurcated trial and analyzes how S.B. 5477 addresses, or fails to address, those issues. Finally, Part V concludes by suggesting that the legislature should have provided for the following in its bill responding to the Blakely decision: a provision allowing bifurcation for all trials with an aggravating factor; a provision allowing the prosecution to amend the initial charge with additional factors if the majority of evidence that supports a new aggravating factor emerges at trial; a provision allowing judges to order bifurcation when the evidence would not have been admissible pre-Blakely and when justice so requires; and, a provision that requires courts to apply the Washington Rules of Evidence to both phases of a bifurcated trial.
II. The Current Face Of Enhanced Criminal
Sentencing in Washington
A. Sentencing Enhancements Beyond the Statutory Maximum:
Apprendi v. New Jersey
Much of the Supreme Court's analysis in Blakely rested on the Court's holding in Apprendi v. New Jersey(fn16) in which the Court first addressed the constitutional role of the jury in determining facts that enhance a defendant's punishment. The defendant in Apprendi pled guilty to second-degree possession of a firearm for an unlawful purpose, an offense punishable by five to ten years in prison.(fn17) Following the guilty plea, the prosecution filed a motion to enhance the charge based on New Jersey's hate-crime statute.(fn18) That statute allowed a trial judge to impose an extended sentence if the judge found by a preponderance of the evidence that "the defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity."(fn19) The amended filing was based on a retracted statement made by the defendant(fn20) that was not used to prove an element of the crime and was not admitted to by the defendant.(fn21)
The judge found that the defendant had acted with a purpose to intimidate and applied the hate crime enhancement, sentencing him to twelve years in prison.(fn22) The defendant appealed, arguing that the "Due Process Clause of the United States Constitution requires that the finding of bias upon which his hate crime sentence was based must be proved to a jury beyond a reasonable doubt," and not left to the trial judge to make a determination based upon a preponderance of the evidence.(fn23) The Appellate Division of the Superior Court of New Jersey affirmed, holding that the legislature had made the hate crime enhancement a sentencing factor rather than an element of the crime.(fn24) The New Jersey Supreme Court also affirmed the trial court's decision, deferring to the state legislature and holding that the enhancement served as a legitimate balance between the efforts of hate-crime statutes to avoid punishing mere thought and the "State's compelling interest in vindicating the right to be free of invidious discrimination."(fn25) As a result, the New Jersey Supreme Court did not address the defendant's claim that the trial court created a new element of the crime with a different standard of proof.
A year before Apprendi, in Jones v. United States(fn26) the United States Supreme Court had framed a question similar to the issue raised by Apprendi: "[W]hen a jury determination has not been waived, may judicial fact-finding by a preponderance support the application of a provision that increases the potential severity of the penalty for a variant of a given crime?"(fn27) Although the Court felt that Jones was not the proper case in which to answer that question,(fn28) the facts in Apprendi provided the Court with the opportunity to do so.
The Court answered with the following constitutional rule: Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum, whether the statute calls it an element or a sentencing factor, must be submitted to a jury and proved beyond a reasonable doubt.(fn29) Moreover, the Court held that "[i]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt."(fn30)
Under the Apprendi rule, if a statute links specific facts to specific maximum sentences, the facts necessary for each such maximum sentence are elements of the offense. In this way, the court determines the "prescribed statutory maximum" sentence and whether the sentence has been unconstitutionally "increased" above that level by a finding of fact not made as an element of the offense.(fn31) Accordingly, the conviction of a defendant is based upon the jury's application of fact to the pertinent law and its determination that each element has been proven beyond a reasonable doubt.(fn32)
The Apprendi rule equates a finding of fact with an element of the crime if that fact "extend[s] the defendant's sentence beyond the maximum authorized by the jury's verdict."(fn33) But it does not do so if that fact fails to increase the defendant's sentence beyond the statutory maximum.(fn34) In other words, "[s]entencing factors that regulate the sentence imposed, but do not produce a sentence exceeding the maximum authorized by the offense elements established by the jury's verdict, are consistent with the Apprendi rule."(fn35)
A question that arose from the Apprendi decision, and the question that was answered in Blakely, is whether a jury must make the factual findings that support an aggravating factor that increases a defendant's sentence within the prescribed statutory guidelines.
B. Sentencing Enhancements Within the Statutory Guidelines:
Blakely v. Washington
The Supreme Court revisited Apprendi and a jury's constitutional role in determining facts that increase a defendant's punishment when it delivered its recent decision in Blakely v. Washington(fn36) In Blakely, the defendant pled guilty to kidnapping his estranged wife.(fn37) The defendant admitted to the elements of second-degree kidnapping involving domestic violence and the use of a firearm, but he did not admit to any other relevant facts.(fn38) Those admitted facts, when considered alone, would have justified a sentence of no more than fifty-three months under the Washington State Sentencing Guidelines.(fn39) Instead, the trial judge sentenced the defendant to an exceptional sentence of ninety months in prison based on the judge's finding that the defendant had acted with "deliberate cruelty,"(fn40) a statutorily permissible ground for imposing an...
