Blakely, federalism, retroactivity and pragmatism

As I noted before here, it is significant and telling that no states have filed briefs in support of the federal government’s position in Booker and Fanfan. And upon re-reading the briefs seeking to distinguish the federal system from the rule in Blakely, I was struck particularly by the federalism ironies in this chapter of sentencing reform and also by how the SG’s arguments may sell out the states on the important question of Blakely‘s retroactivity. Let me explain:

1. The federalism ironies. Thoughtful observers of modern sentencing reform — from the ABA in its Standards for Criminal Justice to leading academics (see, e.g., Michael Tonry, Sentencing Matters (1996), Richard Frase, Sentencing Guidelines in Minnesota, Other States, and the Federal Courts: A Twenty-Year Retrospective, 12 Fed. Sent. Rep. 69 (1999)) — consistently report that state sentencing reform efforts have generally been successful while federal efforts have not. In Professor Tonry’s words, “Few outside the federal commission would disagree that the federal guidelines have been a disaster [while] state guidelines [have] turned out … surprisingly well.” Sentencing Matters at pp. 9-13.

Yet now the SG and USSC are arguing that the distinctive features of the federal system — e.g., that the federal guidelines are (mostly) written by a (mostly ineffectual) commission and that they are (extremely) complicated and require punishment for uncharged conduct — should exempt the federal guidelines from the constitutional rule articulated in Blakely. The first irony is that highly questionable legal distinctions are being made in an effort to “save” perhaps the only guideline system that does not deserve saving. The deeper federalism irony is that arguments for a “federal exemption” to the Blakely rule are being made to a Rehnquist Court that has sought to reinvigorate federalism concepts by exempting states from federal legal burdens.

2. The states’ retroactivity problem. Inherent to the SG’s argument that Blakely does not apply to the federal guidelines is the assertion that Blakely was just an application of the Apprendi rule. See SG Brief at 18 (“Blakely thus applied the rule of Apprendisee also USSC Brief at 18-19. In other words, to exempt the federal guidelines from Blakely, the Supreme Court would essentially have to hold that Blakely was not a new rule, just an application of the rule announced in Apprendi. But so holding would then seem to require states to apply the (not-new) Blakely rule to all convictions not yet final when Apprendi was decided in June 2000.

In other words, the argument the SG is making in an effort to “save” the current federal sentencing system (which, by most accounts, is not worth saving) could have the effect of destroying at least four years of past state sentencing outcomes. Following the SG’s arguments to its logical conclusion entails that the argument for exempting the federal guidelines from Blakely is not pragmatic at all, since pragmatically speaking such a ruling will create many more headaches and problems for state sentencing systems than it might save for federal sentencing. Thus, despite my earlier suggestion here that the federal debate over Blakely is a dispute between principle and pragmatism, I now realize that both principle and pragmatism support the application of Blakely to the federal system.