Oregon State Bar Bulletin — AUGUST/SEPTEMBER 2004

The Blakely Dividend
Has the Supreme Court made us an offer we can’t refuse?
By Jesse Wm. Barton

On June 24, 2004, the United States Supreme Court issued its much-awaited decision in the criminal case, Blakely v. Washington, 124 S Ct 2531 (2004) (Scalia, J.). This decision invalidated a feature of guidelines sentencing systems called "aggravated-departure sentencing" that has been a part of the Oregon Felony Sentencing Guidelines since the legislature approved them in 1989.1

Blakely is of great interest to the general public, because it presents Oregon a unique opportunity to save tens of millions, and maybe even hundreds of millions of dollars in correctional costs. As Everett Dirksen might have said, this is "real money."

Blakely declared the aggravated-departure sentencing system unconstitutional, because the judge, using a preponderance standard, finds "aggravating factors" used to increase the defendant’s sentence. The jury, using a reasonable-doubt standard, plays no role. Blakely holds that absent a valid jury waiver, "the maximum penalty for a crime" is the maximum sentence that may be imposed based solely on a jury verdict.2 Therefore, a guidelines system’s use of judicially-found aggravating factors to increase a defendant’s sentence, without a valid jury waiver, violates the Sixth Amendment’s jury-trial clause.

In Blakely, the judge used aggravating factors to impose a 90-month "departure" sentence of imprisonment. The sentence is a "departure," because the maximum allowable sentence without the factors — the so-called "presumptive maximum" — was only 53 months. So the judge unconstitutionally used aggravating factors to nearly double the defendant’s sentence.

Four days after deciding Blakely, the Court issued its decision in Dilts v. Oregon, 124 S Ct 2906 (2004) (mem.). There, the Court vacated and remanded an Oregon Supreme Court decision that erroneously upheld an aggravating factor found by the trial court to the exclusion of a jury. The factor was the court’s basis for imposing a 36-month departure sentence. The presumptive maximum was 18 months.3

Dilts is coming back to Oregon for reconsideration in light of Blakely. It’s hard to see how, on remand, defendant Dilts can lose on the merits. For one thing, the state’s aggravated-departure sentencing system was modeled after Washington’s unconstitutional system.4 Indeed, at pages 17-18 of an amicus curiae brief filed in Blakely on behalf of the State of Washington, the Oregon Attorney General admitted that the state’s aggravated-departure sentencing system "would almost certainly be invalidated" if the Court ruled in the defendant’s favor.5

Blakely probably will not affect sentencing under Ballot Measure 11 (the mandatory-minimum sentencing system the voters approved in 1994). But as the state Department of Justice recently conceded in a document called "Living with Blakely vs. Washington," the decision may invalidate other systems that allow judges alone to find facts needed to increase sentencing severity. These include systems that allow judges alone to find facts needed:

In the near term, living with Blakely will be kind of tricky. As the Ninth Circuit recently said, Blakely "worked a sea change in the body of sentencing law."6 Blakely is based on the Court’s four-year-old decision in Apprendi v. New Jersey, 530 US 466 (2000). Three years ago the Kansas Supreme Court accurately applied Apprendi when it invalidated that state’s aggravated-departure sentencing system.7 Last year the Kansas Supreme Court held that because the state’s statutory scheme unconstitutionally committed the finding of aggravating factors solely to judges, so to the exclusion of juries, the aggravated-departure system could not be used unless and until the legislature fixed it.8 As the Blakely Court explained, the Kansas Legislature fixed that state’s system, by committing the finding of aggravating factors to juries using the reasonable-doubt standard.9

The question in this state is whether the Oregon Legislature should do something similar. Surely the legislature must act if the aggravated-departure system is ever again to be used. Like the Kansas system, the Oregon system commits the finding of aggravating factors solely to judges.10 The system is a creature of the legislature, and its constitutional defects cannot be fixed administratively.11 Nor can its unambiguous constitutional defects be fixed judicially, under the guise of statutory construction.12 As in Kansas, unless and until the legislature fixes it, the system cannot be used.

This Blakely dilemma presents the question of whether the legislature should fix the system, and if so, which fix it should approve. Budget priorities should strongly influence the answer. The state could spend the Blakely-generated savings in correctional costs trying to restore the invalid sentencing system. Or the state could spend the money on other priorities—such as keeping schools open or buying armored Humvees for our guard and reserve troops in Iraq and Afghanistan.

The Criminal Justice Commission has estimated that 500 to 600 inmates are serving unconstitutional aggravated-departure or consecutive sentences. But the Commission has not estimated how many inmates are serving sentences that are unconstitutional for other reasons (for example, because they were improperly denied eligibility for time cuts for good behavior or boot-camp participation, or were improperly given multiple sentences for essentially inseparable violations of the same crime against the same victim). Moreover, the Commission’s estimate is based on reports submitted by circuit courts. Those reports, when they are submitted at all, frequently are improperly completed. Finally, the Commission’s estimate is only a "snapshot" of the current inmate population. It does not account for the number of future inmates already projected to enter the prison system to serve sentences that now would be unconstitutional under Blakely.

For these reasons, the Commission’s estimate is significantly lower than the actual number of inmates who are or will be affected by Blakely. Still, the Commission’s data could be used to make a highly conservative estimate of the savings the state would realize, if the legislature were to take a laissez-faire approach to Blakely’s repercussions. For example, assume that: (1) there are 600 inmates each serving an unconstitutional sentence; (2) on average each sentence, as in Dilts, is 18 months too long; (3) the average annual cost of incarceration is $20,000 per inmate; and (4) there will be an average cost of litigation of $3,000 per inmate to force resentencing in compliance with Blakely. Under these assumptions, the state would realize a total savings of $16.2 million.13

Call these savings the state’s "Blakely dividend." But again, $16.2 million is a very conservative estimate. Blakely will affect far more than 600 present and future inmates who should get an average time cut of something more like the 47 months coming to Blakely, rather than the 18 months coming to Dilts. The average annual cost of imprisonment is more than $20,000. Finally, the average cost of litigation to force resentencing in compliance with Blakely might be something like $3,000 at the beginning. But before long the average cost should shrink to essentially nothing. When the dust finally settles, a savings estimate based on reliable data could be at least 10 times the conservative, $16.2 million Blakely dividend calculated above.

Admittedly, these figures might vary up or down. Regardless, a reliable savings estimate could be drawn from information provided by the Offender Information and Sentence Computation unit of the Department of Corrections (DOC). That unit has a copy of the judgment of conviction and sentence for every inmate in the DOC system, so its information is exhaustive and highly accurate.

With that in mind, the legislature should direct its fiscal office, in cooperation with the Commission and the DOC, among others, to develop a reliable estimate of the state’s Blakely dividend. Only with that estimate would the legislature, as ORS 173.029 requires,14 know the cost of legislation that would attempt to restore the unconstitutional sentencing system Blakely invalidated. And only with that estimate would the legislature know, thanks to the state’s Blakely dividend, how much money is available to spend on other priorities.

In other words, any current and future discussions about the appropriate legislative response to Blakely should not slavishly focus on attempting to restore an unconstitutional sentencing scheme created 15 years ago. The discussions instead should focus on the state’s modern priorities and current exigencies. Only that sort of discussion would allow the legislature to "best discern the true interest of" the state and be "least likely to sacrifice it to temporary or partial considerations."

1. See Or Laws 1989, ch 790, § 87.

2. 124 S Ct at 2537. See also Id. at 2539 ("[j]ust as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary").

3. "A sentencing judge must impose a presumptive sentence * * * unless there are ‘substantial and compelling’ reasons in aggravation or mitigation, in which case the judge may depart from the presumptive range." State v. Davis, 315 Or 484, 487 (1993). This construction of the presumptive- and departure-sentence scheme is considered part of the statutes themselves. E.g., State v. Clevenger, 297 Or 234, 244 (1984). Under the doctrine of disability at self-correction, only the legislature can change the Supreme Court’s construction of the scheme. E.g., Pacific Northwest Bell Telephone Co. v. Eachus, 320 Or 557, 561 n 4 (1995).

4. See, e.g., State v. Wilson, 111 Or App 147, 151 n 4 (1992).

5. See www.dwt.com/pdfs/01-04_ BlakelyBriefofAlabama.PDF (copy of amicus brief).

6. United States v. Ameline, 376 F3d 967 (9th Cir. 2004). Also of interest is Justice O’Connor’s recent statement that she was "disgusted" by the Blakely decision, and that its effect "looks like a No. 10 earthquake to me." www.cnn.com/2004/LAW/07/22/ oconnor.sentences.ap/index.-html

7. State v. Gould, 23 P3d 801 (Kan. 2001). Interestingly, the Kansas system was modeled after Oregon’s. See State v. Richardson, 901 P2d 1, 4 (Kan. App. 1995).

8. State v. Kessler, 73 P3d 761, 771-72 (Kan. 2003) ("A [sentencing] court’s authority to impose sentence is controlled by statute. Thus, where the statutory procedure for imposing upward durational departure sentences has been found unconstitutional, the district court has no authority to impose such a sentence.").

9. See Blakely, 124 S Ct at 2541.

10. "ORS 137.671 authorizes a court to impose a departure sentence if [the court] finds that substantial and compelling reasons justify a deviation from the presumptive sentence." State v. Dilts, 336 Or 158, 173 (2003), vacated sub nom. Dilts v. Oregon, 124 S Ct 2906 (2004) (mem.). See also OAR 213-008-0001 ("the sentencing judge shall impose the presumptive sentence provided by the guidelines unless the judge finds [aggravating factors] to impose a departure").

11. Although the legislature has charged the Criminal Justice Commission with administering the guidelines, the legislature has formally approved them. See Or Laws 2003, ch 453, § 2 (setting out the full text of the current guidelines, and approving them in their entirety). See also Or Laws 1989, ch 790, § 87 (approving guidelines). Because of this legislative approval, the Supreme Court has twice said that the guidelines "have the authority of statutory law." Dilts, 336 Or at 162; State v. Langdon, 330 Or 72, 74 (2000). Moreover, ORS 137.669 and ORS 137.671(1) expressly mandate trial court compliance with the guidelines’ presumptive- and departure-sentence scheme. Finally, ORS 137.667(2) states: "The commission may adopt by majority vote of all of its members who are eligible to vote amendments to the sentencing guidelines * * * . The commission shall submit the amendments to the Legislative Assembly for its approval. The amendments do not become effective unless approved by the Legislative Assembly by law."

12. See, e.g., Jackson v. United States, 390 US 570, 585 (1968); Foster v. Goss, 180 Or 405, 408 (1947); State v. McLain, 158 Or App 419, 426-27 (1999) (en banc). See also State v. Anthony, Multnomah County Case No. 0301-30470 (Revised Ruling on Demurrer).

13. The actual formula is: ([$20,000 x 1.5] - $3,000) x 600 = $16.2 million.

14. In pertinent part, ORS 173.029(1) provides that for any bill that would "increase the period of incarceration allowed or required for an existing crime, the Legislative Fiscal Officer * * * shall prepare a fiscal impact statement describing the fiscal impact that the measure would, if enacted, have on the state as well as on local governmental units."

15. The Federalist No. 10 (James Madison).

Jesse Wm. Barton is a criminal defense attorney practicing in Salem.

© 2004 Jesse Wm. Barton

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