State and federal officials are scrambling to examine their options in the wake of a major ruling by the US Supreme Court that threatens to undermine sentencing-guideline systems in several states and all federal courts.
At the same time, defense attorneys and defendants are gearing up for what could become a flood of appeals seeking reduced sentences under the new precedent.
In a case called Blakely v. Washington, the Supreme Court last week invalidated a 7-1/2-year sentence in a Washington State kidnapping case because the majority justices said the punishment violated the defendant's Sixth Amendment right to a jury trial. While the decision was good news for defendant Ralph Howard Blakely Jr., it may represent a constitutional death knell for sentencing-guideline programs like Washington State's that allow a judge to use facts not considered by a jury at trial to boost a defendant's punishment.
Instead of a 53-month sentence, Mr. Blakely received a 90-month sentence after the judge in his case determined - independent of any jury - that Blakely had acted with "deliberate cruelty."
"The court ignores the havoc it is about to wreak on trial courts across the country," said Justice Sandra Day O'Connor in a dissent to the 5-to-4 decision. "Over 20 years of sentencing reform are all but lost, and tens of thousands of criminal judgments are in jeopardy."
Indeed, by declaring that Blakely's sentence violates the US Constitution, the high court has set off a flurry of activity in other states and within the federal government to determine if their own systems might also be unconstitutional. "There will be tremendous dislocation in any number of state systems and the federal system," says Kevin Reitz, a professor at the University of Colorado School of Law in Boulder and an expert on state sentencing-guideline systems.
Professor Reitz says roughly half of the 15 states with guideline systems will be affected by the Blakely decision. Oregon and North Carolina may be particularly vulnerable to challenges, he says. But most in jeopardy is the federal system with its large number of judicially enhanced sentences, he says.
"Up to 90 percent of federal sentences will run afoul of Blakely, as opposed to 10 percent of sentences in state systems," he says.
In her dissent, Justice O'Connor noted that within the past four years more than 270,000 defendants have been sentenced under the federal guidelines.
Sentencing guidelines are a cornerstone of reform efforts to make the way judges mete out punishment more fair. They do it by calculating a defendant's sentence through a matrix of characteristics of his or her criminal activity and background. Without such guidelines, sentences for similar crimes could vary widely based on any biases or preferences of the judge.
On the other side of the equation, a sentencing system that rigidly mandates a particular sentence for a particular crime offers no flexibility for judges to attempt to tailor punishment to fit the individual characteristics of the defendant or crime.
Sentencing-guideline systems are an attempt to strike a fair balance. The Blakely decision affects only those facts that trigger additional punishment, notes Nancy King, a sentencing expert at Vanderbilt University Law School in Nashville, Tenn. "Facts that might lead to lower punishment are not affected, nor are facts that trigger mandatory-minimum sentences."
One alternative for those seeking to maintain their guideline systems is to follow the lead of Kansas, which created a two-tier trial system with a separate sentencing phase to ensure that a jury, rather than a judge, decides all the factors that result in an enhanced sentence.
This approach might be workable in some states, but analysts say it would probably be too expensive and cumbersome in the federal system. Another alternative - presenting relevant sentencing details during the trial - would probably make trials increasingly complex.
"The number of special findings [by a jury] that might be required would be enormous," warns US Solicitor General Theodore Olson in his brief to the court in the Blakely case.
Some experts say additional plea negotiations may solve many of the concerns raised by the Blakely decision. "Like everything else in criminal justice, these things are negotiable," says Richard Frase, a sentencing expert at the University of Minnesota Law School in Minneapolis.
Another alternative on the federal side, analysts say, may be an attempt by lawmakers to scrap sentencing-reform efforts. "There is a very real prospect that the current federal guidelines will be replaced with a matrix of mandatory penalties," says Reitz. "That would be worse for judges, for defendants, and for the public."