first place has, for all practical purpos- es, been replaced by a similarly wide
discretion in the hands of federal pros-. ecutors. It is that discretion which almost
uni-.
Cite this page 32 M.L.W. 2647
August 9, 2004
Massachusetts Lawyers Weekly • 11
LETTERS
'Good Riddance' To Sentencing Guidelines To the Editor : Massachusetts would be well served to heed the turmoil roiling the criminal side of the federal courts in the wake of the U .S. Supreme Court's June 24 decision in Blakely v. Washington, 124 S. Ct 2531. In Blakely, the court found that the defendant's Sixth Amendment right to a jury trial was violated by Washington state's sentencing scheme where statutorily mandated base sentence ranges were subject to enhancement on the sentencing judge's finding of aggravating circumstances based only on a preponderance of the evidence standard . The court (Scalia, J .) held that any finding that increased a defendant's punishment required a jury's, not a judge's, determination. Moreover, the standard to be applied had to be proof beyond a reasonable doubt. Limited to its facts, the Blakely result would not be of particular interest, but the court's decision is a shot at the heart of the Federal Sentencing Guidelines. The entire regime of the federal guidelines is based on the concept of a base offense "score" and then the addition of prescribed aggravating factors as determined by U .S. District Court judges on the civil preponderance of the evidence standard.
U.S. District Court Judge Nancy Gertner recently construed Blakely in a matter before her and concluded that the Supreme Court has "rendered [the guidelines] unconstitutional in their entirety ." For all of those of us who have practiced on the criminal side of the federal court since the advent of the guidelines in 1987, I say, "Good riddance ." The guidelines were a well-intentioned "reform" to address disparity resulting from the broad sentencing discretion that had historically resided in the hands of federal judges . However, the unwitting effect of the guidelines has been to straightjacket judges from fairly tailoringp rnishments to the facts before them . In the process, the unregulated judicial discretion that was the target of the federal guidelines in the first place has, for all practical purposes, been replaced by a similarly wide discretion in the hands of federal pros- . ecutors . It is that discretion which almost unilaterally drives sentencing outcomes in the federal courts . The result has been a distortion of justice. Probably the most dramatic gesture ofjudicial displeasure with the guidelines was the 2001 announcement
of U.S . District Court Judge Edward F . Harrington in US v. Sidhom, 144 F Supp .2d 41, that he was voluntarily taking himself off of the federal criminal docket in protest of the guidelines . Harrington explained his decision by noting that the guidelines "constitute p an erosion of judicial power and a breach in the wall of the doctrine of the separation of powers ." In the Blakely decision, Harrington has correctly found his vindication, and on July 21 he announced that as of Sept . 1 he will once again begin accepting assignments on the criminal docket. Fortunately, the model of the Federal Sentencing Guidelines was never adopted here in the commonwealth. Instead, a flexible regime of true "guidelines" for sentencing awaits implementation . There is nothing in Blakely that suggests that the commonwealth's regime would be vulnerable to constitutional chailenge. Hopefully, the day is near when the Federal Sentencing Guidelines are scrapped for good, and flexible but orderly structures for sentencing criminal offenders in both the federal court and in the courts of the commonwealth will exist . Lloyd Macdonald Boston
