Reflections on the SG’s argument on Blakely‘s applicability

Arguing for the government, Acting SG Paul Clement very effectively framed the issues facing the Supreme Court in an effort to highlight the “carnage and wreckage” that would flow from applying Blakely to the federal guidelines. Clement noted at the outset that there are 1200 federal criminal sentencings each week, and he suggested they could all be suspect if Blakely applies to the federal system. He also strongly argued that Dunnigan, Witte, Watts and Edwards all conveyed a particular understanding of the guidelines as distinct from the statutory maximums enacted by Congress.

Clement cleverly focused on the fact that in Watts essentially the whole court, save Justice Stevens, in summary fashion rejected a challenge to the use of acquitted conduct in guidelines sentencing. He also ultimately asserted that the key precedent really at stake was Mistretta, as he suggested that Mistretta itself would have to be reversed because the respondent’s argument would essentially mean that the US Sentencing Commission has functionally created elements for thousands of new federal crimes.

I think Clement is right when saying that extending Blakely to the federal guidelines would essentially overrule Watts. But that is, in my view, another argument for extended Blakely. Every year I teach Watts in my sentencing courses, and every year students are aghast that the existing guidelines require judges, based on preponderance findings, to enhance sentences based on facts relating to charges on which a defendant was acquitted. It is very hard for a criminal justice system to endorse Watts and also claim to have a serious commitment to the jury right.

But I think Clement is wrong when saying that extending Blakely to the federal guidelines would essentially overrule Mistretta. This claim is based on the assertion that extending Sixth Amendment rights to guideline factors would turn them into de facto elements. But because such guideline factors require judges to impose longer sentences, they truly are already de facto elements (and this is why Ex Post Facto law limits the application of new guidelines to old cases). In other words, defendants now feel substantively the impact of guidelines factors as if they were elements, and the SG is just arguing that defendants should not be provided the usual procedural protections that accompany such elements. This is what gives the government’s argument a “through the looking glass” quality: according to the government, defendants get full procedural rights when Congress substantive increases sentences, but they do not get these rights when a (less democratically accountable) administrative agency increases sentences.

As I noted in a prior post and as others have noted throughout the blogsphere and in the media, it does not seem Clement was winning any converts with his (well crafted but very uphill) arguments. Indeed, the most interesting interchange during this part of the argument was when Justice Kennedy started to explore with Clement whether different facts might get different treatment under the Blakely rule. This led me to wonder whether Justice Kennedy was hoping to engineering a more nuanced approach to the (still developing) Blakely doctrine. No one followed Justice Kennedy’s lead at oral argument, but I think he may be on to something that could merit some time and energy as the Justices start writing all this up.