Justice reconsidered
Colorado courtrooms could be in for a change thanks to recent supreme court decisions

By Vince Darcangelo(editorial@boulderweekly.com)

Ralph Howard Blakely, Jr., of Three Forks, Mont., took his wedding vows seriously. So seriously that when his estranged wife, then living in Washington state, filed for divorce, he took action. He kidnapped her.

Though separated for four years, in October of 1998, three weeks before a scheduled divorce hearing, Blakely bound his wife's hands and feet with duct tape and locked her in a homemade plywood box in the bed of his truck. Then he ordered their 13-year-old son to drive the truck to his ranch in Montana, threatening to shoot his mother inside the box if he refused. The following day authorities arrested Blakely, and mother and son escaped unharmed.

In 2000, a jury of Blakely's peers found him guilty of abducting his wife, a crime punishable by up to 53 months in jail. But at sentencing, with no jury present, the judge delivered a sentence of 7 1/2 years, or 90 months, going beyond the statutory maximum sentence based on the aggravating factors of "deliberate cruelty" and committing the crime in the presence of his son.

At the time Blakely v. Washington did not seem like a case that would forward the cause of reforming America's criminal-justice system. But in a 2004 appeal the U.S. Supreme Court ruled that by adding aggravating sentencing factors that increased the sentence beyond the maximum after the jury trial, the sentencing procedure violated the Sixth Amendment of the U.S. Constitution, which guarantees the right to a jury trial.

Though hardly a sympathetic character, Blakely was suddenly cast as an accidental champion for sentencing reform.

Then on Jan. 12, 2005, the U.S. Supreme Court made a landmark decision in two cases inspired by Blakely—United States v. Booker and United States v. Fanfan—that turned two decades of federal sentencing guidelines on their ear and has legal experts at the state and federal levels scrambling to decipher its repercussions. The National Center for State Courts (NCSC) has determined that Colorado is one of 16 states the sentencing schemes of which may be affected by the verdict. And though the ultimate effect of Blakely in Colorado can not yet be predicted, very soon Coloradans will likely become familiar with a hip new legal term: We may become "Blakely-ized."

At issue is discretionary judgement. Making the Colorado sentencing scheme comply with Blakely will not create shorter sentences for violent criminals or repeat offenders. It will tweak sentencing to comply with the Sixth Amendment right to a jury trial and return discretionary power to judges so that they are not required to increase sentences based on factors not heard by the jury. As the NCSC wrote in its evaluation of Blakely v. Washington, "While Blakely appears to some as a death knell for all guidelines, it is actually better viewed as an opportunity for states to revisit their guidelines, attempting to make them less subjective and fairer to all."

The Blakely effect

"It's a brave new world," says Patrick Furman, clinical professor of law at the University of Colorado.

So new, in fact, that the effect of Blakely, in light of the Booker and Fanfan decisions, won't be known until pending cases are heard in the Colorado Supreme Court.

"We're going to have to review our sentencing scheme in light of Booker and decide whether or not those parts of our scheme that require aggravated sentences are constitutional under Booker," says Furman. "It does seem that at least parts of the Colorado sentencing scheme are unconstitutional when they require a judge to sentence someone to an aggravatedly high sentence based on factors that the judge decides exists, rather than factors that are found by a jury. That's what Booker says, in essence: If there are facts that are going to require a higher sentence, then a jury has got to find those facts or the defendant's got to admit those facts."

For example, say a jury finds a defendant guilty of a crime in Colorado that carries a four- to 12-year presumptive sentence. After the jury is dismissed, the sentencing portion of the trial begins, during which the judge will look at aggravating and mitigating factors. Aggravating factors are those that would add to a base sentence, such as a defendant being accused of possessing a weapon during certain offenses. Mitigating factors are those that would decrease a base sentence, such as a defendant being a first-time offender. Any sentence within the four- to 12-year range is "presumptive," i.e., the base sentence. Anything outside that range is the result of a judge finding aggravating or mitigating factors that might increase or decrease a sentence. In Colorado, some aggravating factors require judges to go beyond the presumptive range (a judge can cut the presumptive minimum in half or double the maximum when sentencing). According to Furman, this is where Blakely et al., come into play.

"The [Colorado] statute says that the presence of certain facts requires a sentence in that extraordinarily aggravated range," he says. "There's a whole variety of facts that might require a judge to give an aggravated sentence. What Booker says is you can't leave those findings of fact up to a judge. You've got to have a jury decide."

In Booker and Fanfan, rather than impose a bifurcated jury trial (in which the jury also sits in during the sentencing phase, which could lead to the dilemma of jury sentencing), the U.S. Supreme Court remedied the matter of constitutionality by making the federal guidelines advisory as opposed to mandatory.

According to Furman, something similar may soon happen in Colorado.

"Presumably, those portions of the Colorado sentencing scheme that require an aggravated sentence upon a finding by a judge would be declared unconstitutional, just like the federal sentencing scheme in Booker," he says. "It technically hasn't happened yet, because [the Colorado] Supreme Court hasn't ruled and the federal courts haven't ruled on our state statute, but I think everybody agrees that at least parts of it fall within the prohibitions set out in Booker."

Setting precedent

Landmark court rulings, such as Blakely et al., don't come about overnight, and the recent movement to bring sentencing in line with the Constitution goes back at least six years—and features a rogue's gallery of defendants as unsavory as Ralph Blakely.

In Jones v. United States, 1999, the U.S. Supreme Court ruled that a convicted carjacker's sentence, which was increased based upon evidence presented after he had been found guilty by the jury, was unconstitutional. The court ruled the same in Apprendi v. New Jersey in 2000, where Charles C. Apprendi's conviction for second-degree possession of a firearm for an unlawful purpose, which was increased during sentencing when the judge deemed it a hate crime, violated the Due Process Clause of the 14th Amendment.

"What the U.S. Supreme Court has said since at least 2000, in Apprendi, is if the only way you can get a sentence longer is for a judge to make a factual finding—other than the fact of a prior conviction, which is excluded from this—then the defendant has a constitutional right to have a jury make that decision," says Phil Cherner, a criminal defense lawyer in Denver and adjunct professor of law at the University of Denver Law School. "Increasingly the states and the federal government have let judges make those decisions. They've let them do that because they've passed sentencing laws that give the judge that authority. The U.S. Supreme Court said the Sixth Amendment reserves that authority to the people, and their representatives are the jurors."

In Ring v. Arizona, 2002, the U.S. Supreme Court ruled that Arizona's sentencing scheme violated the Sixth Amendment's jury guarantee when Timothy Ring was sentenced to death on a conviction of felony murder occurring in the course of armed robbery—a conviction that only warranted capital punishment if Ring was the victim's actual killer. During the sentencing trial, the judge determined Ring to be the killer based on accomplice testimony, but this testimony was neither heard nor considered by a jury.

"We've had warning here for some time that this might be coming," says Furman. "The first effect that we felt on it was in the death-penalty situation. In Ring v. Arizona, the United States Supreme Court said that a judge cannot alone find aggravating factors and impose a death sentence. That's a jury function.

"But that just applied to capital cases," he continues. "Then some lawyer had the bright idea that if that's true in capital cases, why shouldn't it be true in non-capital cases."

Enter Jeffrey Fisher.

At the time of the Ring decision, Fisher, a Seattle-based lawyer, was doing volunteer work for the National Association of Criminal Defense Lawyers. He was keeping an eye out for potentially important cases or issues for the organization to consider. And along came Blakely.

"I thought there was a problem with the way our sentencing guidelines worked, so I thought they were susceptible to a Sixth Amendment jury challenge," he says. "And then I started to look around for a case, and I spotted Mr. Blakely's case."

Taking over for the lawyer who had defended Blakely in his criminal trial, Fisher pushed the case to the U.S. Supreme Court, riding a wave of momentum that had been swelling since Apprendi. Fisher says that he knew from the start that he was getting into something big—something perhaps with repercussions beyond just Blakely v. Washington.

"It was pretty clear to me and everyone involved in the case, once the Supreme Court took it, that if I won, the next case was going to be the federal guidelines. If I won, the federal guidelines were going to be in big trouble," he says. "So many people were focused on trying to get the Supreme Court to go from Apprendi to the federal guidelines, but it was too big a leap. The thing that I was able to do with Blakely was build a bridge. It was a stepping stone. The court didn't have to go quite as far in Blakely as it had to go in the federal guidelines. But once it went as far as it did in Blakely, then the federal guidelines were right there in front of them."

Federal fallout

The June 24, 2004, Blakely decision had legal experts on all sides clambering to interpret and respond to its implications. The Department of Justice issued a memo to federal prosecutors that outlined seven procedures they should utilize in response to Blakely. Sentencing-reform advocates, such as Families Against Mandatory Minimums (FAMM), analyzed the implications of the verdict on federal guidelines and mandatory minimums. Legal task forces were created in many states. And the National Center for State Courts prepared a 28-page memo to help states understand what effect, if any, Blakely could have on their sentencing scheme.

"What we tried to do in the memo was look at, first of all, what were the sentencing systems in all the states, because they're all completely different. And most of them are a lot different than the federal," says Anne Skove, senior knowledge management analyst at the NCSC. "Blakely was in Washington State, so we knew what it meant for Washington State. But everybody had to look at their own guidelines

"People didn't even know if they would be affected right away. It depended on how the case law went and how things were interpreted," she continues. "And of course they wanted a review of it right away to get some guidance, which was Booker and Fanfan."

When the U.S. Supreme Court delivered its landmark two-part decision in Booker and Fanfan on Jan. 12, which turned federal sentencing guidelines from mandatory to advisory, another side weighed into the debate: Congress, which had enacted the federal sentencing guidelines through the Sentencing Reform Act of 1984.

Some responded in knee-jerk fashion, such as U.S. Rep. Tom Feeney, R-Florida, who issued a statement the day of the Supreme Court ruling that read: "Today's Supreme Court decision to invalidate a large portion of the federal sentencing guidelines is an egregious overreach into Congress' constitutional power to ordain and establish the lower federal courts... Congress clearly and explicitly required the sentencing guidelines to be mandatory when it passed the Sentencing Reform Act of 1984."

The statement concluded that the Supreme Court decision "flies in the face of the clear will of Congress."

Others weren't as quick to pass judgement on the ruling, including U.S. Sen. Arlen Specter, R-Penn., who is chairman of the Senate Judiciary Committee.

"Today's ruling by the Supreme Court has major implications to America's legal system and the way in which offenders are sentenced for crimes they commit," he said in a statement issued Jan. 12. "As the chairman of the Senate Judiciary Committee, I intend to thoroughly review the Supreme Court's decision and work to establish a sentencing method that will be appropriately tough on career criminals, fair and consistent with constitutional requirements."

Some legal experts have expressed concern that Congress will react too quickly and impose stricter guidelines and mandatory minimum sentences, and many are urging Congress to be patient.

"I hope that Congress will stay its hand and see how Booker turns out," says Fisher.

Mary Price, general counsel of FAMM, agrees.

"I tend to think that this is a good time to wait and see how things actually go," she says. "We ought to give the federal sentencing system a chance to settle into this advisory guideline place, and let's see, in fact, if huge disparities exist in sentencing."

Closing arguments

"The short-term effect has been minimal, if any," says Jeff Dorschner, spokesman for the U.S. Attorney's Office in Colorado. "The long-term effect of Booker and Fanfan remains to be seen. In the two weeks following the Supreme Court decision, sentences have been within the guidelines with very few exceptions. The guidelines continue to be used as advisory guidance and federal prosecutors continue to argue that the sentences provided based on guideline calculations are reasonable.

"I can only speak for prosecutors in Colorado," he continues. "And the prosecutors in Colorado are comfortable with the Supreme Court decision."

But while the federal changes may have had minimal effect, changes at the state level are palpable—and more are likely on the way.

"It's having an effect," says Cherner. "It's affected a handful of cases I've been involved in already, and we can expect that it will have more."

Many anticipate that Colorado's sentencing scheme will soon be altered to fall in line with Blakely.

"My guess is that the [Colorado Supreme] court will reach the same result that the United States Supreme Court reached in Blakely and Booker and will say that there are parts of the Colorado sentencing scheme that are unconstitutional to the extent that they require an aggravated sentence based on a judge finding certain facts," says Furman.

Majority Leader of the Colorado Senate, and member of the Colorado Senate Judiciary Committee, Ken Gordon says he supports the Blakely decision.

"Do I think Blakely was correctly decided? Yes, I think so," he says.

He anticipates that when the issue arises, Colorado's sentencing scheme will be changed to adhere to the Blakely decision.

"We have to," he says. "It's the law."

According to John Krause, interim solicitor general for the interim Colorado Attorney General John Suthers, the issue may be decided as early as this May in a Colorado Supreme Court verdict in People v. Lopez.

"It will allow the Colorado Supreme Court to say, 'Yes, the people are right. This sentencing scheme allows the judge to make the determination based on the jury's verdict. He's not making an additional finding,' or to say, 'We find that what the judge has to do is sufficiently like what the judge had to do in Blakely, and therefore the sentences under the scheme are invalid," he says.

The Attorney General's office is arguing the former, although it hasn't had much success since Blakely.

"The legal question is whether the court's determination is something that is or is not authorized by the jury verdict. We have argued that it is authorized by the jury's verdict and therefore it passes muster under Blakely," says Krause. "We have not won that argument in the Court of Appeals. We have lost about six published cases where the Court of Appeals panel has said, 'No, this is in violation of Blakely.'"

A defeat in People v. Lopez will likely result in the "Blakely-ization" of Colorado's sentencing scheme. While no one can predict how that will play out, Patrick Furman has a few ideas.

"There are a number of different possible legislative responses. One response is to eliminate mandatory aggravation, make it all advisory and leave it up to the judge," he says. "Or they could just raise all the sentencing ranges. Right now it's four to 12 [years] for a Class III felony. If they wanted to they could make it four to 24 so that a judge doesn't have to bother with this extraordinary aggravation business.

"If the legislature was looking for a simple way to do it, they'd just raise the upper end of the sentencing ranges," he continues. "I think that would be wrong-headed. That's going in the wrong direction in terms of sentencing."

A more radical change would be to adopt a sentencing commission, such as the Virginia model.

"In Virginia there's a state sentencing commission. They put out guidelines," says Skove. "Judges, even though they're voluntary, when they depart from them, give a reason. That's sent back to the sentencing commission... It's a feedback loop."

Whatever the resolution, any system that returns discretionary power to the bench is a positive reform in the view of Jeffrey Fisher.

"I think that keeping some discretion in the hands of judges, even if there's watchdogs, is important," he says.

Fisher says the best sentencing systems he's seen involve guidelines that are Blakely-ized and prevent disparity, while giving discretion to judges with regard to aggravating factors.

"When a factual finding is made that exposes the defendant to an increased sentence, the judge still has some discretion as to whether or not to actually do it," he says.

The upcoming Colorado Supreme Court decision in People v. Lopez may resolve the issue of mandatory aggravators in the Colorado sentencing scheme. In doing so, the Court may return discretion to judges in Colorado—and perhaps restore order in the court.

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