Sentencing Guidelines are dead! Long live Sentencing Guidelines!

The Supreme Court’s decision in Blakely seems to mean that the standard operating procedures for most sentencing guideline systems — including those of the federal sentencing guidelines — are no longer constitutionally sound. But, despite Justice O’Connor’s ominous statement that “[o]ver 20 years of sentencing reform are all but lost,” I do not think the only real options are to return to the dark ages of unfettered judicial sentencing discretion or intricate systems of determinate sentencing that prosecutors essentially control through plea bargaining. Rather, I think it is quite possible to build a sound and sensible structured sentencing system that accords with that new constitutional requirements of Blakely (whatever they are) and that also achieves many of the important policy goals pursued through modern guideline reform efforts.

How? A system of relatively simple offense guidelines — starting with a modified charge-offense approach and adding only a few very basic and general categories of aggravators (which would be subject to the Blakely rule) — could be both workable and effective. And jurisdictions worried that their current guideline systems have been hit with a Blakely wrecking ball could quickly recast their systems along these lines, but only if their sentencing commissions take a bold and active leadership role in this post-Blakely world. I am very eager to see if, and how, sentencing commissions step up to the plate. They have never been needed more than now.

To paraphrase the dramatic voice-over from the TV classic The Six Million Dollar Man:

We can rebuild [the guidelines]. We have the technology. We have the capability to make the world’s first [constitutional guidelines]… Better than [they were] before. Better . . . stronger . . . [fairer].