What Blakely is really about: adversarial versus administrative justice

Aided by yesterday’s two wonderful Wall Street Journal articles (discussed here and here) and a great student comment at last week’s Harvard panel, I think I finally have Blakely figured out. Blakely is really a battle between five Justices who champion an adversarial model of sentencing in which sentence-enhancing facts must be proved to a jury beyond a reasonable doubt, and four Justices clinging to a now-dated administrative model of sentencing where, in Justice Scalia’s words, “a lone employee of the State” makes all critical findings and determinations.

The WSJ articles provide additional evidence of just how much modern federal sentencing has become a (prosecutor-controlled) administrative system of criminal justice. As the articles explain, US Sentencing Commission data reveal that 97 of every 100 federal convictions are now secured through guilty pleas. Sentences are increased by prosecutors by alleging at sentencing offenses and other facts that never were charged or proved, and guideline calculations are based almost exclusively on information in a pre-sentence report prepared by a probation officer who gets most offense information from a federal prosecutor. I am now reading Blakely as a statement that this administrative system of sentencing cannot persist if we are truly committed to an adversarial system of criminal justice.

The sparring between Justices Scalia and Breyer makes so much more sense when viewed through this adversarial/administrative lens. Justice Scalia assails Justice Breyer’s “esteem for non-adversarial truth-seeking processes” and asserts that “Our Constitution and the common-law traditions it entrenches … do not admit the contention that facts are better discovered by judicial inquisition than by adversarial testing before a jury.” Slip op. at 17. And Justice Scalia concludes his Blakely opinion with this telling passage:

One can certainly argue that both these values [of efficiency and fairness] would be better served by leaving justice entirely in the hands of professionals; many nations of the world, particularly those following civil-law traditions, take just that course. There is not one shred of doubt, however, about the Framers’ paradigm for criminal justice: not the civil-law ideal of administrative perfection, but the common-law ideal of limited state power accomplished by strict division of authority between judge and jury.

The adversarial/administrative distinction also helps explain other aspects of the Blakely story. It explains why Justice Breyer, traditionally considered a liberal, is fighting against extending Sixth Amendment rights to sentencing. A former professor of administrative law and author of leading administrative law texts (see his bio here), Justice Breyer obviously has an affinity for administrative processes even at sentencing. It also explains my fear expressed here that the arguments of the Blakely dissenters might undermine claims of a right to counsel at sentencing. Lawyers are essential for fair adversarial processes; but if sentencing is to be more administrative, then the right to a lawyer is more questionable.

Finally, the adversarial/administrative distinction also helps explain why Williams v. New York, 337 US 241 (1949), which permits lax procedures in an indeterminate-sentencing regime, may have been sound at the time it was decided. Recall that Williams expressly defends lax sentencing procedures based on the then-dominant rehabilitative “medical” model of sentencing: the Williams court stressed that “[r]eformation and rehabilitation of offenders have become important goals of criminal jurisprudence,” and the Court sought to foster “modern penological procedural policies” by ensuring judges have “the fullest information possible concerning the defendant’s life and characteristics.” The Williams court stressed that allowing judges access to out-of-court information is grounded in “the belief that by careful study of the lives and personalities of convicted offenders many could be less severely punished and restored sooner to complete freedom and useful citizenship.” Id. at 249.

If in fact the prosecutor, probation officer, judge and parole official are all trying to devise the least severe sentence to “cure” a “sick” offender, an administrative model of sentencing makes sense. Just as patients are not thought to need “procedural rights” when being treated by a doctor, defendants at the time of Williams were not thought to need such rights when being sentenced by a “medical model” sentencing court seeking to give “careful, humane, and comprehensive consideration to the particular situation of each offender.” But, of course, “modern penological procedural policies” have changed drastically over the last 30 years. Though the demise of rehabilitation as a penal theory may be overstated, there is no doubt that sentencing is today predominantly about imposing punishment, not about devising a cure.

As Judge Nancy Gertner highlighted in her Mueffleman decision (available here), in the federal system the major decisions about the imposition of punishment have been made by Congress and the Sentencing Commission (an administrative agency). Thus, after a prosecutor makes a variety of discretionary charging and bargaining choices, the judge’s role is “transformed to ‘just’ finding the facts, now with Commission-ordained consequences” but “with fewer safeguards, less formality, and far less legitimacy” than what should prevail in a fair adversarial system.

In short, the Blakely decision ultimately reflects the fact that we reformed the substance of our sentencing laws without reforming the procedures. Blakely finally recognizes that, in a world in which sentencing is about punishment and no longer about curing, we should no longer be comfortable relying on administrative procedures at sentencing.