What is the Impact of Blakely v. Washington on Sentencing in Tennessee?
((( Mr. Raybin is a member of the Nashville firm of Raybin & Weissman, P.C. .. He served as a member of the Tennessee Sentencing Commission and Chaired the Substantive Law Subcommittee that drafted the Tennessee Sentencing Reform Act of 1989. Mr. Raybin also drafted the Tennessee death penalty statute in 1976 and assisted in drafting the 1982 Sentencing Act. He is the author of Tennessee Criminal Practice and Procedure (West 1984). Mr. Raybin may be reached via the addresses available on the website www.HwyLaw.Com)))
Tennessee permits a judge to impose higher sentences when there are statutory enhancement factors such as the presence of a gun or where the victim was particularly vulnerable, e.g. an elderly person. Blakely v. Washington, 2004 WL 1402697 (June 24, 2004) called into question the constitutionality of such judge-imposed sentencing enhancements over and above the elements of the crime for which the defendant is convicted. This article addresses the impact of this decision in Tennessee.
The Constitution requires that the prosecutor prove all elements of the crime to a jury. Blakely v. Washington held that beyond the elements of the crime, “every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment.”
In light of this holding, I believe that Blakely v. Washington limits a Tennessee judge to the statutory presumptive sentence since sentencing enhancements are now considered part of the defendant’s Sixth Amendment right to trial by jury. This new ruling will not impact plea agreements since the defendant can waive a jury for sentencing determinations. Thus, the short-term impact will not be catastrophic.
To remedy what I believe are constitutionally mandated limitations on judicial sentencing, I suggest in this article that we now consider amending the 1989 Sentencing Act. This does not require wholesale revisions of the law. Instead I advocate a bifurcated jury trial where – after guilt is assessed – the jury determines the existence of statutory enhancement factors. That accomplished, the judge may then impose a sentence, considering only those factors that the jury determined were proven by the government beyond a reasonable doubt.
There is no requirement that the jury impose the sentence, only that the jury determine the existence of enhancement factors that increase the sentence above the presumptive sentence fixed by the legislature. The remaining framework of our Tennessee sentencing laws can remain untouched and still comply with the new ruling. Until our laws are amended however, I have concluded that the judge may not impose a sentence beyond the presumptive sentence.
In Blakely v. Washington, the United States Supreme Court found that the Sixth Amendment right to jury trial makes unconstitutional the imposition of any sentence above the statutory maximum prescribed by the facts found by a jury or admitted by the defendant. Blakely considered whether the sentencing procedure followed by courts in the State of Washington deprived the defendant of his “federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence.”
Mr. Blakely had originally been charged with first-degree kidnapping, but the charge was reduced upon reaching a plea agreement. He pleaded guilty to second-degree kidnapping involving domestic violence and use of a firearm. Under the Washington Criminal Code, second-degree kidnapping is a class B felony that carries a maximum statutory sentence of ten years. The Washington Sentencing Reform Act further limited the sentencing range to 49-53 months. The Washington statute, however, permitted the judge to impose a sentence above that range upon finding “substantial and compelling reasons justifying an exceptional sentence.”
During the defendant’s sentencing proceeding, the judge imposed an “exceptional sentence” of 90 months. This enhanced sentence was based on the judge’s finding that the defendant used “deliberate cruelty,” which is a statutorily enumerated ground for departure in domestic violence cases under the Washington Act. The sentence was upheld on rehearing and on appeal to the Washington State Court of Appeals. The Washington Supreme Court denied discretionary review.
On review to the United States Supreme Court, the Court held that the State’s sentencing procedure violated the defendant’s Sixth Amendment right to trial by jury under Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny.
In Apprendi, the Court determined that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” The Court reasoned that the Due Process Clause and the Sixth Amendment right to a jury trial “indisputably entitle a criminal defendant to ‘a jury determination that [he] is guilty of every element of the crime with which he is charged beyond a reasonable doubt.” Further, in Ring v. Arizona, 536 U.S. 584(2002) the Court struck down a statute on the basis of Apprendi, stating that “[i]f a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact – no matter how the State labels it – must be found by a jury beyond a reasonable doubt . . . . A defendant may not be ‘expose[d] . . . to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.’” In Blakely, the Court applied this precedent to the Washington state guideline scheme, explaining:
our precedents make clear . . . that the “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. . . In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment . . . and the judge exceeds his proper authority.
2004 WL 1402697. Thus, the rule of Apprendi, as explained in Ring and now Blakely, establishes that any fact “legally essential to the punishment” must be proven beyond a reasonable doubt to a jury or admitted by the defendant.
Application of the Blakely analysis to Tennessee sentencing law requires a very detailed comparison with the Washington sentencing scheme to examine similarities and differences between the two. The Washington Sentencing Reform Act establishes “presumptive sentencing ranges” based on the “seriousness level” of the offense and the defendant’s “offender score.” Wash. Rev. Code § 9.94A.310(1). The offense seriousness level is determined by the offense of conviction and the offender score is based upon the defendant’s criminal history. This presumptive range is adjusted upward if the offender or an accomplice was armed with a deadly weapon. The Act requires that the court impose a sentence within the presumptive range unless it finds that “there are substantial and compelling reasons justifying an exceptional sentence.” An “exceptional sentence” is appropriate “when the circumstances of a particular crime distinguish it from other crimes within the same statutory definition.” See, State v. Fisher, 739 P.2d 683, 688 (Wash. 1987).
The Washington act provides a non-exhaustive list of factors the judge may consider. Wash. Rev. Code § 9.94A.390. Relevant facts must be proven to the judge by a preponderance of the evidence. Id. at § 9.94A.370(2). Ultimately, the defendant’s sentence may not exceed the statutory maximum prescribed for the class of felony, even if the presumptive range or an exceptional sentence exceeds this limit. State v. Gore, 21 P.3d 262 (Wash. 2001). The key to a proper analysis here is that Washington law expressly provides that a sentence in excess of the statutory guideline range is contingent on the finding of aggravating circumstances.
The Washington statutes are structured somewhat differently than the federal Sentencing Guidelines. The majority in Blakely said that the federal sentencing guidelines were not before the Court. Nevertheless, it is instructive briefly to address the federal guidelines since the federal guidelines are more familiar to Tennessee practitioners and thus may offer some guidance in resolving the question of Blakely’s application to Tennessee sentencing statutes.
The federal sentencing guideline range, unlike the Washington system, is not based solely on the circumstances involved in the actual crime of conviction and the defendant’s criminal history. Instead, in addition to the defendant’s criminal history, the federal guideline range depends upon a far more complicated calculus designed to arrive at the “total offense level.”
The federal total offense level is comprised of the “base offense level” and any relevant “specific offense characteristics.” See U.S.S.G. § 1B1.1. Drug offenses, for example, are subject to a particular guideline, but the base offense level is not determined solely by the offense conduct, meaning the facts comprising the crime of conviction. In drug cases the base offense level is heavily dependent upon the amount of drugs involved in the offense.
Frequently, the specific drug quantity used to calculate the defendant’s sentence is neither alleged in the indictment nor admitted by the defendant. Pursuant to the sentencing guidelines, the court makes a factual finding as to the quantity of drugs using information compiled by the United States Probation Officer. This factual finding must be supported by a preponderance of the evidence. After this base offense level is established, it may be adjusted upward or downward by a number of specific offense characteristics. The enhancements and reductions, like the factors contributing to the base offense level, must be established by a preponderance of the evidence.
This “exceptional sentence” determination under Washington law is not identical to determinations of offense conduct, relevant conduct, or sentencing enhancements under the federal sentencing guidelines. In fact, the Washington exceptional sentence is more closely analogous to an “upward departure” permitted by the federal sentencing guidelines. Both the Washington exceptional sentence and a federal upward departure allow the court to sentence above the guideline range where the factors establishing the guideline range do not adequately reflect the seriousness of the offense. The dissenting judges in Blakely utilized this similarity to express veiled predictions of doom for the federal sentencing guidelines:
Washington’s scheme is almost identical to the upward departure regime established by [the federal sentencing laws]. If anything, the structural differences that do exist make the Federal Guidelines more vulnerable to attack. The [Washington] provision struck down here provides for an increase in the upper bound of the presumptive sentencing range if the sentencing court finds, “considering the purpose of [the Act], that there are substantial and compelling reasons justifying an exceptional sentence.” The Act elsewhere provides a nonexhaustive list of aggravating factors that satisfy the definition. § 9.94A.390. The [majority] flatly rejects respondent’s argument that such soft constraints, which still allow Washington judges to exercise a substantial amount of discretion, survive Apprendi. … This suggests that the hard constraints found throughout chapters 2 and 3 of the Federal Sentencing Guidelines, which require an increase in the sentencing range upon specified factual findings, will meet the same fate.
2004 WL 1402697 (O’Connor, J. dissenting)
These – and other – observations by Justice O’Connor have been widely quoted to give some insight into the majority opinion. The most common citation to Justice O’Connor’s dissenting opinion is her listing of nine states (which she lists by example) that have sentencing guidelines. Although Tennessee is not mentioned, this is no comfort since Justice O’Connor also said that, “Today’s decision casts constitutional doubt over them all and, in so doing, threatens an untold number of criminal judgments.”
Tennessee sentencing laws are different from the federal and Washington systems. We can only glean so much by analogy, and thus the following section explores Tennessee statutes in detail to assess the precise impact Blakely may have on our jurisdiction.