Blakely V. Washington - Dissenting Opinions

Dissenting Opinions

Justice O'Connor feared dire consequences as a result of the Court's ruling. Before Washington enacted its guidelines scheme, there was remarkable disparity among sentences meted out for similar offenses. Guidelines schemes have the effect of reducing this disparity by channeling the discretion of sentencing judges, who are told how to weigh what factors when computing a sentence. By enacting its sentencing guidelines, Washington did not intend to "manipulate the statutory elements of criminal offenses or circumvent the procedural protections of the Bill of Rights. Rather, lawmakers were trying to bring some much-needed uniformity, transparency, and accountability to an otherwise 'labyrinthine sentencing and corrections system that 'lacked any principle except unbridled discretion.'"

Far from "disregarding principles of due process and the jury trial right," O'Connor argued, the guidelines system honored them. Under the former sentencing scheme, a defendant like Blakely could have received anything from probation to 10 years in prison. Under the guidelines, he knows what range of sentence he might receive based on the conduct in which he engaged. "Criminal defendants still face the same statutory maximum sentences, but they now at least know, much more than before, the real consequences of their actions." The guidelines also reduce disparities, particularly those based on race, which was a concern of some critics of the pre-guidelines system.

O'Connor foresaw a "substantial constitutional tax" in applying the Apprendi rule to sentencing guidelines systems. She protested that the traditional sentencing factors would now have to be charged in the indictment and proved to a jury. Bifurcated proceedings may become commonplace in criminal trials, so that a jury might not improperly consider prior bad acts during the guilt phase but properly consider them when it comes time for sentencing. And under some guidelines schemes, such as the federal sentencing guidelines, some facts relevant to sentencing, such as perjury and obstruction of justice, cannot be known until the trial is underway. In any event, all relevant sentencing facts may not be known prior to trial, since prosecutors typically wait until after a guilty verdict is obtained before gathering a full history of the defendant and examining the pertinent facts of the crime in order to recommend a sentence.

Finally, O'Connor disagreed with the majority's interpretation of the "statutory maximum" in a guidelines context. She believed that, despite the mandatory nature of the guidelines, the "statutory maximum" remained (for Blakely) 10 years. For O'Connor, mere formalism dictated the conclusion that the "statutory maximum" was the greatest sentence the judge could legally impose based on the facts found by the jury or admitted by the defendant, and formalism was not a virtue she felt was worth vindicating. Furthermore, the effects of the decision were not confined to Washington, for every system involving guidelines sentencing, including the federal system, were constitutionally suspect.

Justice Breyer envisioned three possible responses to the majority's decision. First, legislatures could prescribe exactly the same sentence for all possible variations of a crime — an automatic five-year sentence for all robberies, for instance. This system has the "intolerable" effect of imposing the same sentence on people commit their crimes in vastly different ways. Prosecutors would end up with the real control over defendants' sentences, since prosecutors ultimately make the decisions regarding how to charge the case. Second, states could return to indeterminate sentencing, in which the authorized range of punishment for crimes is very broad. But such systems were criticized (rightly, in Breyer's view) for their excessive disparity and unfairness. There would be less "reason" in an indeterminate sentencing system than in the guidelines system Washington had adopted.

Third, the guidelines systems currently in force would remain, and the jury-trial requirement would be grafted onto them. Breyer predicted this could play out in one of two ways. First, legislatures might redefine crimes with highly specific detail — a robbery statute could enhance punishment based on the value of the goods taken, whether a gun was used, the seriousness of the threat used to obtain the goods, and so on. But the result of this system would be the same as the first option — prosecutors would end up with the discretion to determine the defendant's sentence by manipulating the charge. Second, two juries could be assembled for each criminal trial, one for the guilt phase and one for the penalty phase. But this approach would be costly, as the experience with bifurcated trials in capital cases has shown.

Perhaps another solution would be to prescribe overly harsh sentences for crimes, and then define a list of mitigating factors, so that a judge could still retain the discretion to impose sentences (since the jury-trial requirement only applies to increases in the maximum sentence). But "political impediments" make vast revisions of any legislative scheme difficult to implement, and Breyer doubted that the mere fact that the Court ruled the Sixth Amendment demanded a legislative solution would impel many state legislatures to revamp their criminal codes in this way.

Finally, Breyer argued that legislatures needed to retain the constitutional authority to make the labelling decision between an "element" of a crime and a "sentencing factor." Without the ability to do so, legislatures cannot create "sentencing systems that are consistent with, and indeed may help to advance, the Constitution's greater fairness goals." For Breyer, those greater fairness goals are achieved when a defendant's real conduct drives the sentence he receives. Constitutional obstacles that stand in the way of this goal detract from the overal fairness of the criminal justice system.