Law and Punishment

On September 12, 2004, the New York Times quoted sentencing-law expert Frank O. Bowman of Indiana University as saying: "There has not been a single case in the history of American criminal law with the immediate impact of this one." Benjamin Wittes, court commentator for the Washington Post, called the case "the single most irresponsible decision in the modern history of the Supreme Court."

The case they were writing about is Blakely v. Washington, decided last June. The Supreme Court's decision in Blakely held that portions of Washington state's laws on sentencing were unconstitutional. Why are these commentators, and much of the criminal justice community, up in arms about a decision that invalidates portions of one state's sentencing laws? The answer is: This decision and some of its predecessors gut the entire sentencing-reform movement in the United States. What is still more worrisome, these decisions changed through judicial fiat, without legislation or a constitutional amendment, the rules under which people are sentenced to prison. Worst of all, the Supreme Court has undermined the rule of law by handing down the Blakely decision only a few years after upholding the very same sentencing structure. In fact, it was the subversion of the rule of law by one of the decisions in this line of cases that convinced me to retire from the practice of law after 28 years as a lawyer, with 21 as a prosecutor. In effect, I have gone on strike from the legal system—like the characters in Ayn Rand 's Atlas Shrugged.Three Methods of SentencingTo understand the issues, we must first consider what led up to the case of Apprendi v. New Jersey, decided by the Supreme Court in 2000. Before Apprendi, there were three basic ways to sentence defendants who had committed crimes. A few states, such as Texas and Tennessee, had long-standing traditions of jury sentencing. After a trial on the merits, if there was a conviction, the jury heard evidence about what sentence it should give and pronounced the sentence itself. Some states still retained a second system, under which judges passed sentences without statutory guidelines. From the beginning of the criminal justice system in this country, this was the general rule: The jury found whether the defendant was guilty or not guilty, and the judge imposed the sentence. A third type of sentencing was adopted in many states and by the United States Congress, owing to public and legislative perceptions that the second system resulted in sentences too short for the crimes committed and also rendered sentencing extremely random—dependent in large measure on the whims of the assigned judge. This third type of sentencing involves the judge in determining whether "aggravating and mitigating factors" are present. These aggravating and mitigating factors are listed in the criminal statutes. Here is how the process works: There is a base sentence for the crime in question. Let us say that the defendant has been convicted of residential burglary at a trial. The normal sentence is five years in prison. But the criminal can receive a mitigated sentence that is as little as one year or an aggravated sentence that is as long as nine years. Which sentence he receives is determined by the judge, who weighs the aggravating and mitigating factors. The sentence may be any length between the absolute minimum and the normal sentence, or between the normal sentence and the maximum. The judge is required to make a record with regard to these aggravating and mitigating factors, and, on the basis of that record, his findings and his application of them in arriving at the sentence can be scrutinized on appeal. The language used in federal court is different, but the result is the same. The federal court uses upward or downward departures as the terminology; however, I will use the normal state-court terminology to simplify the analysis. In the case of Frank Quattrone, discussed in Roger Donway's article " The Case for Frank Quattrone " (Navigator, July-August 2004), the court used this third system of sentencing. The normal sentence under the federal guidelines was ten to sixteen months in prison. But the judge found that Quattrone had perjured himself in his testimony. As a result of this finding, he sentenced Quattrone to eighteen months in prison. Note that the jury did not make that finding based on the evidence—the judge made it. In effect, he gave Quattrone an aggravated sentence. Because this third type of sentencing imposed legislative direction upon the judge, and forced him to tailor a sentence within certain limits, according to specified criteria, it had the advantage of standardizing sentences to some degree. To be sure, in practice it was somewhat cumbersome, but it was much more predictable in its results than either jury sentencing or unrestricted judicial sentencing. And it resulted in longer prison stays for serious offenders, thus protecting the public for longer periods of time from serious criminals. (It also had the unfortunate side effect of lengthening the sentences of many drug offenders.)

Apprendi

Now we are ready to discuss the case of Apprendi v. New Jersey, which the Supreme Court decided in 2000. Charles Apprendi fired shots into the home of a black family. He confessed to the crime and later stated that he fired the shots because he did not want a black family in his neighborhood. (Apprendi later retracted those statements.) He pled guilty to "possession of a firearm," which is a "second degree" offense under New Jersey law and normally carries a prison term of five to ten years. (Summary based on the "Syllabus" from the United States Supreme Court decision.) After Apprendi's plea, the prosecutor filed a motion to enhance the sentence, based upon the fact that the shooting was racially motivated. This is one of the so-called hate crimes laws. By a preponderance of the evidence, the judge found that the shooting was racially motivated and sentenced Apprendi to twelve years in prison—a sentence above the normal range. The United States Supreme Court reversed Apprendi's conviction, holding that the Sixth Amendment right to trial by jury and the Fourteenth Amendment's due-process clause require that "any fact other than prior conviction that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proved beyond a reasonable doubt" (Apprendi v. New Jersey, 530 U.S. 466 [2000]).

Walton and Ring

The majority of the Court reached this holding in Apprendi despite their earlier decision in the case of Walton v. Arizona (1990). There, the Court upheld Arizona's death penalty sentencing procedures, even though those procedures called for a judge to weigh aggravating and mitigating factors after the finding of guilt and to impose a sentence of death or life imprisonment based on those factors. In Apprendi, Justice Sandra Day O'Connor dissented based on the holding in Walton, and she predicted that the Court must reverse Walton based on Apprendi. Justice Clarence Thomas, concurring in Apprendi, attempted to distinguish Walton on the grounds that it was a capital case but stated that whether it was overruled was "a question for another day." That day came soon, and it proved that Justice O'Connor was right in her prediction. The Supreme Court overruled Walton in Ring v. Arizona (2002), holding that Arizona's death penalty procedures were unconstitutional. This ruling came a scant twelve years after the Court, in Walton, had upheld the same statute on identical grounds. Such a quick about-face is highly unusual. Perhaps not since the Supreme Court turned on a dime when Franklin Roosevelt threatened to pack the Court have the justices reversed themselves so quickly on identical facts. When one adds that the Court was changing the law on capital punishment in such a short period of time, one is facing the most serious implications regarding the rule of law and its effects on people's lives.

Blakely and Beyond

This brings us to Blakely v. Washington (2004). The defendant pleaded guilty to kidnapping his estranged wife, which carried a maximum sentence of 53 months. The judge imposed a sentence of 90 months, finding that the defendant had acted with extreme cruelty, an aggravating factor listed in the statute. The defendant appealed, but the Washington Court of Appeals affirmed. (Summary based upon the "Syllabus" from the United States Supreme Court decision.) The Supreme Court reversed, again applying the rule of Apprendi. Justice Antonin Scalia wrote for the majority and argued that the decision was not intended just to uphold Apprendi, but to give "intelligible content to the fundamental constitutional right of trial by jury." Dissenting, Justice O'Connor stated: "The consequences of today's decision will be as far reaching as they are disturbing. Washington's sentencing system is by no means unique. Numerous other States have enacted guidelines systems, as has the Federal government." Just so. And now there are two cases before the Supreme Court that bode to be decided in the current term and which will apply the Apprendi and Blakely decisions to the Federal Sentencing Guidelines. (See the sidebar .) These guidelines were adopted to give defendants, victims, and the general public consistency in sentences and a reasonable prediction as to how much time a defendant would receive for committing a particular crime. Barring a massive change in position by justices currently on the Court, it is highly unlikely that the Court can do anything other than strike down the Federal Sentencing Guidelines. Despite the pendency of these two cases—which will almost certainly void Frank Quattrone's sentence—the judge in Quattrone's case ordered him to prison during his appeal. That means he will serve some of his constitutionally shaky sentence before the Supreme Court rules in June. And if the Court does not rule in June but postpones these cases to another term, Quattrone will serve his entire sentence before these decisions are handed down. Evidently, state legislatures must change their sentencing statutes. The United States Congress will probably have to do so as well. In about half the states, there have been legislative hearings and attorney-general opinions to determine what to do next with sentencing laws that follow the now questionable practice of judges' acting on mitigating and aggravating circumstances. The simplest thing would be to allow the jury to impose sentences. That would resolve the constitutional dilemma and would also allow more citizen involvement in the criminal justice system. But there is no likelihood of consistency in jury sentencing. Another effect would be to add a penalty phase to trials and even in cases without trials. Well over 90 percent of all defendants enter pleas of guilty to the charges or to lesser charges. If their plea agreements do not call for a waiver of the right to jury sentencing, there would have to be jury trials regarding sentencing. Moreover, there would have to be a large number of re-sentencing trials for any defendants who were sentenced before these decisions but who still have their cases on appeal at the time of the decisions. This would seriously strain an overworked court system. Many sentences will be reduced.

Life-and-Death Consequences

I was a prosecutor in Arizona doing murder trials and some death-penalty litigation at the time of the Ring decision, which overruled Walton. The most bizarre application of this line of cases has been to Alan Walton himself. Walton filed a petition for certiorari with the United States Supreme Court following the Apprendi decision. In essence, he said: You've basically held that Walton has been overruled. I'm Walton. Doesn't that mean that I get to have my death sentence set aside? Don't I get a jury trial on my death sentence? The Supreme Court denied Walton's petition for certiorari. The Court has since held that Apprendi and Ring are not retroactive. They apply only to cases on direct appeal at the time of the sentencing. Thus, Walton is still on death row awaiting execution, but Timothy Ring will have a re-trial on his sentence. Both are convicted murderers who were sentenced to death. They will be treated differently solely because of the date that their convictions became final on appeal. I retired from prosecution because of the Ring decision. It is impossible to do cases of great moment when you don't know what the rules are and what they will be. If the United States Supreme Court can change its ruling about a matter of the utmost importance after a scant twelve years, the system is so chaotic as to be meaningless. William E. Perry was a lawyer in Arizona for 28 years, including 21 as a prosecutor, five years as a defense attorney, a year running a paralegal program for the Navajo Nation, and a year as a part-time judge.This article was originally published in the October 2004 issue of  Navigator magazine, The Atlas Society precursor to The New Individualist.