Clement starts to explain that in some cases this is terrifically complicated. He tries to hypothesize a messy fraud case, but Stevens cuts him off. "Keep it simple," he says. "There are usually not a host of enhancing factors—just the drug quantity and a gun." Clement tries to return to his fraud prosecution, but again Stevens stops him: "Use the example I've given you," he hisses. With the gun.
Clement is undeterred. "Let me use my fraud example, and you may see a difference," he pleads. He argues that if there are thousands of victims of a telemarketing scheme, the jury could not find the sentence-enhancing number of crimes unless "they called in every one of the 2,000 individuals who had been defrauded."
Stevens doesn't buy it. "You don't think that could be proven with two or three witnesses? I'm not persuaded." To which Scalia gleefully adds, "Is it better if the judge is just guessing?"
Breyer steps forth with a list of "four categories of things that are difficult to prove to a jury," including No. 2, misconduct, like a defendant's perjury that occurred during trial; and No. 4, things "too difficult to explain to a jury," among which he includes "brandishing." But Breyer also seems to realize that the guidelines are doomed, so he shifts to a pragmatic resolution to the problem of what to do next. He suggests reading the rules "so that 'shall' would mean 'may,' and the guidelines thus become 'permissive.' " Permissive means the guidelines would become, er, "guidelines" rather than definitive rules. He wonders, "What would be wrong with that approach?"
"Nothing," says Clement.
Breyer interrupts him—"I thought of something else that may be wrong," he says. If judges were all interpreting permissive guidelines differently and appealing those decisions, "We would become the sentencing commission." Breyer sighs. Comic pause for two beats, then, "I thought I'd escaped."
It's a fascinating read. For any non-lawyers, the Blakely issue involves whether judges can take into account fact outside of what the jury found true beyond a reasonable doubt in imposing sentence. In the examples here, committing a crime with a firearm might make it a greater sentence than if one wasn't involved. And if you've defrauded a gagillion people, you might get a longer sentence than if it was just one crime. But often the trials are separated out so the jury only gets the one fraud charge, so can the judge take into account the other stuff or not? Some courts have held it unconstitutional to do so because the defendant wasn't found guilty beyond a reasonable doubt on that point by a jury. That could require trials to be much more complex: once they've found the defendant guilty of the crime at hand, then the court will have to hold a mini-trial on each of the enhancing issues. But as it stands, the states are split as to whether the earlier Blakely decision (online here) means that the federal sentencing guidelines - many of which rely on just these kinds of things - are unconstitutional or not. A sampling:
On July 9th the 7th Circuit (taking appeals from U.S. District Courts in Illinois, Indiana, and Wisconsin) weighed in with U.S. v. Booker, holding that Blakely applies to the federal sentencing guidelines.
In Pineiro the Fifth Circuit (covering Texas, Louisiana, and Mississippi) on July 12th held that Blakely does not apply to the federal sentencing guidelines.
The Sixth Circuit in Montgomery has held that Blakely applies to the federal sentencing guidelines.
In Mooney the Eight Circuit held the federal sentencing guidelines unconstitutional and directed the District Court to resentence, treating the guidelines as advisory.
In Ameline the Ninth Circuit held that Blakely applies to the federal sentencing guidelines.
It's a huge issue because federal sentences are notoriously more harsh than state sentences are, and generally don't allow much discretion - the Judge has to follow the guidelines whether they feel the punishment is just or not. It's is a very complex subject and if you're interested in far more detail than I know about this, there's an entire Blakely blog out there.
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