The Blakely Effect: Managing the Uncertainty

Despite Justice Scalia's terse statement in a footnote that the Court expressed no opinion on the federal guidelines because they were not before the Court, the Blakely ruling has rendered the federal guidelines vulnerable to attack. Using the current guidelines, judges are required to consider certain facts — found by a “preponderance of the evidence” — which provide the basis for sentence enhancements. These facts are rarely charged in the indictment and never submitted to a jury. This has been the practice in federal courts for 17 years and is also used in many states. Many commentators say the practice is inconsistent with the Court's ruling in Blakely.

Several federal courts have agreed, declaring the federal Sentencing Guidelines unconstitutional. Yet where the Guidelines have been declared unconstitutional, there is profound disagreement over how sentences should now be formulated. Individual district judges have endorsed each of the following remedies: postponing sentencing until further clarification is available; sentencing defendants somewhere between the statutory minimum and maximum without using the guidelines; applying only the constitutional portions of the guidelines; issuing alternative sentences that attempt to predict the future of the sentencing laws and remove the necessity of re-sentencing. In US v. Ameline, the Ninth Circuit ruled that the guidelines were inconsistent with Blakely and as a potential remedy, the court said that a district judge had authority to convene a sentencing jury, much like in capital cases. It won't be long before a jury, somewhere, will hear sentence enhancements.