DWT Reports That U.S. Supreme Court Voids Washington State Sentencing System; Ruling Affects Numerous Other States; Casts Thousands of Felony Sentences into Doubt

News Editors & Legal Writers

WASHINGTON—(BUSINESS WIRE)—June 24, 2004—The United States Supreme Court today ruled that Washington State's "sentencing guidelines" are unconstitutional because they allow defendants' sentences to be increased by judges instead of juries. The decision rests on "basic principles of procedural fairness," said Jeffrey Fisher of the law firm of Davis Wright Tremaine, who made the winning argument in the Court.

Under Washington's guidelines—which were enacted as part of the Sentencing Reform Act of 1981 and implemented in 1984—every person who is convicted of a felony is assigned a "standard sentencing range" based on his criminal history and the seriousness of his crime. The guidelines, however, permit courts to adjust a defendant's actual sentence upward or downward based on additional "aggravating" or "mitigating" factors. If there is a factual dispute about the presence of an aggravating fact, the guidelines permit judges to make findings by a "preponderance of the evidence" (or more likely than not) standard.

It was this procedure for finding aggravating facts that the U.S. Supreme Court invalidated today, in a case called Blakely v. Washington, No. 02-1632. The Court, by a 5-4, vote, held that the Sixth and Fourteenth Amendments require that any facts that subject defendants to heightened punishment must be found by a jury beyond a reasonable doubt. Rejecting a 2001 decision by the Washington Supreme Court holding that these rules did not apply to Washington's guideline system, Justice Scalia explained for the High Court's majority that "When a judge inflicts punishment that a jury's verdict alone does not allow, the jury has not found all the facts which the law makes essential to punishment, (citation omitted), and the judge exceeds his proper authority." Slip op. at 7. Justices Breyer, O'Connor, and Kennedy all authored separate dissents, joined also by Chief Justice Rehnquist.

Since 1980, 16 other states have adopted guideline-type systems, and eight of those systems -- Alaska, Michigan, Minnesota, North Carolina, Ohio, Oregon, Pennsylvania, and Tennessee - operate like Washington's. Several other states, such as Colorado and Arizona, have non-guideline systems that also contain "aggravating fact" procedures that mirror Washington's and that may be implicated here. One additional state, Kansas, originally enacted a guideline system like Washington's but later amended it to require that any aggravating facts be found by a jury beyond a reasonable doubt.

Federal law also contains a sentencing guideline system, and today's decision casts doubt on that system as well. One federal court, in fact, ruled on June 21 in anticipation of today's Supreme Court decision that the Federal Sentencing Guidelines were unconstitutional for the same reason that Washington's now are. See United States v. Green, No. 02-10054 (D. Mass. June 18, 2004), at pp. 63, 133 (http://pacer.mad.uscourts.gov/dc/cgi-bin/
recentops.pl?filename=young/pdf/supersentencing%20memo.pdf)(Due to the length of this URL, it may be necessary to copy and paste this hyperlink into your Internet browser's URL address field.); see also (http://www.nytimes.com/2004/06/23/national/23judge.html)(New York Times story). In a dissent from the bench today, Justice O'Connor said that "starting today" the legality of the federal guidelines is under great uncertainty.

"Today's decision means that states like Washington need to adjust their sentencing laws to operate the way Kansas's guidelines do," said Fisher. "Someone should not get extra years added to his sentence unless a jury has made sure that the factual basis for that increase actually happened."

The Supreme Court's decision came in the case of an Eastern Washington man, Ralph Howard Blakely, Jr. In 1999, Blakely pleaded guilty to second degree kidnapping with a deadly weapon for abducting his estranged wife from their home near Spokane. His standard sentence for the crimes was 49-53 months. After hearing testimony from the wife and others, however, the judge found that the crime involved "deliberate cruelty" and domestic violence in the presence of the couple's child. (The judge reached this conclusion despite acknowledging that Blakely suffered from personality disorders such as schizophrenia that affected his mental state). Based on these aggravating facts, the judge increased Blakely's sentence by 37 months above the top of the standard range, to 90 months.

The Supreme Court's decision invalidating this 37-month increase throws thousands of similar "exceptional sentences" into doubt. Each year, Washington courts impose hundreds of exceptional sentences, sometimes increasing defendants' prison time by several years. See Statistical Summary of Adult Felony Sentencing, Fiscal Year 2002 at 44 (645 such sentences in 2002) (www.sgc.wa.gov/Stat%20Report%202002.pdf). Every one of these defendants now has a claim that the increased portion of his sentence must be invalidated.

This is the second Supreme Court victory for DWT's Fisher in the last few months. On March 8, 2004, the Court sided with Fisher in reversing another Washington decision, Crawford v. Washington, ruling that the Sixth Amendment right to confront adverse witnesses affords defendants an absolute right to cross-examine their accusers.

Today's Supreme Court's decision in Blakley v. Washington can be accessed at http://supct.law.cornell.edu/supct/html/02-1632.ZS.html.

Fisher is a fifth year associate in DWT's Seattle office, who focuses his practice in constitutional appellate work. A national firm, with more than 410 attorneys in eight offices in the United States and one in Shanghai, China, Davis Wright Tremaine is a business and litigation law firm well-known for its national media and First Amendment, intellectual property, corporate finance, health law, and energy practices.

To view the documents related to this case, click here.

CONTACTS:
Jeffrey L. Fisher, (206) 628-7615, jefffisher@dwt.com
Barrie K. Handy, (206) 628-7404, barriehandy@dwt.com