In California, voters last week nearly toppled the state's three strikes law and in the Supreme Court this fall, justices are poised to make some lasting changes to federal and, possibly, state sentencing. The era of locking up non-violent criminals for lengthy sentences seems to be coming to a close. 

"The country is flirting with criminal justice reforms. People haven't taken a real dive [into this] because prison populations went up in the last year, but 25 to 30 states have passed laws to modify mandatories, get people to treatment, shorten sentences. There's a lot of people experimenting," said Vincent Schiraldi, Executive Director of the Justice Policy Institute, a non-profit research group that follows criminal justice trends.

A recent decision by the Supreme Court in the case Blakely v. Washington may help move sentencing reform along even further.

The case involved a Washington man who pleaded guilty to kidnapping his estranged wife. The facts admitted in his plea supported a maximum sentence of 53 months, but the judge imposed a sentence of 90 months after finding that he had acted with deliberate cruelty. The petitioner claimed that the sentencing procedure violated his right to have a jury determine the facts essential to his sentence.

The court, which ruled in June, stated that when a law establishes a maximum sentence for a crime, an offender's constitutional right to a jury prohibits a judge from imposing a longer sentence if that decision is based on the judge's determination of additional aggravating facts.

If that sentence is to be lengthened, then the jury must make that determination of facts beyond a reasonable doubt.

What that will mean for the states depends on the kind of sentencing process they utilize. If a state uses indeterminate sentencing, then it will not be affected at all. If however, a state uses a structured sentencing system or other sentencing guidelines, then the rules may have to change to accommodate the Blakely ruling.

Observers like Schiraldi believe that because of the current reform atmosphere in the criminal justice system, the Blakely decision will likely lead to even more reform, not less.

"If the Supreme Court upholds [Blakely] it will force states to deal with their sentencing laws in ways they didn't have to before and they may get creative and do some good things. It's an excellent environment for Blakely to happen in," he said. "If this had happened in 1994, we could have seen a ton of mandatory sentences. Now people will look at prison populations and make a more sparing use of prisons."

Even states that aren't impacted by Blakely may start to tinker with sentencing reform, which many think is good news.

State Response

Sentencing experts believe that ultimately the Blakely decision will have a moderate impact on states with sentencing guidelines.

States with structured sentencing, which give guidelines or ranges for sentences based on the crime and other related factors, will likely modify those rules to accommodate Blakely's fact finding requirement. But in the end, many say, it will only be a handful of cases that will be touched by the Blakely ruling.

"The jury must be unanimous only when it goes beyond the maximum. If the internal threshold is not superceded, then Blakely has no effect," said Jon Wool of the Vera Institute of Justice.

At first blush, it may seem that those states with sentencing guidelines bear the brunt of the changes that need to be made in response to Blakely. So, will that mean that states turn away from the idea of sentencing guidelines to avoid the hassle?

Wool says No.

"The states are generally happy with these systems and don't seem to want to return to the days of unstructured or indeterminate systems. They are concerned that, once again, sentences will vary for irrational reasons or cultural reasons and see the loss of predictability in corrections systems. That's an important tool [to them]," Wool said.

Wool said that Kansas officials have the only existing sentencing model that is Blakely-proof because of a similar case decided before the Kansas Supreme Court in 2001. States that decide to alter their sentencing guidelines in light of Blakely may do well to consider Kansas' approach.

"You can comply with Blakely and keep a structured system," he said.

According to Wool, the Kansas court recognized and understood that its ruling meant sentencing guidelines were creating new areas in which the jury had to make fact findings. [So] the state legislature altered the system from judges making the fact finding that led to enhanced sentences to requiring juries to make the finding beyond a reasonable doubt.

In Kansas, if the prosecution decides to seek an enhanced sentence, then the prosecutors must file a motion 30 days before trial. Then, the judge decides whether the related evidence must be presented at post-trial sentencing rather than at the trial. Only evidence that is disclosed to the defense is admissible in a determination about the enhanced sentence. In Kansas, the jury must be unanimous in such a finding and, if the jury finds a reason for an enhanced sentence, the judge still retains the discretion to sentence within or beyond the guidelines.

"For systems that are similar to Kansas, most feel that there is very little disruption. The number of cases that lead to a contested, enhanced sentence is tiny - most believe. It's a couple of percent of cases at most," said Wool.

There are other ways for states to come into compliance with the Blakely ruling.

States, for example, could institute a voluntary set of guidelines, rather than specific sentence ranges. 

On the federal sentencing side, however, things will likely change more dramatically.

Federal Changes

Two new cases before the Supreme Court, U.S. v. Booker and U.S. v. Fanfan, present questions about federal sentencing guidelines. Both cases involve sentences for drug crimes with one decision handed down before and one after Blakely. In both cases, the high court must determine whether Blakely applies to federal sentencing guidelines.

Most observers believe that the court will uphold Blakely and that federal sentencing will change.

According to Marc Mauer, Assistant Director for The Sentencing Project, a non-profit organization that advocates for sentencing reform, said that currently judges in the federal court system have taken a mixed approach to Blakely. Some have continued to follow sentencing guidelines without change and others have stated that the federal guidelines are unconstitutional and thus, have interpreted their own sentencing.

If the Supreme Court makes the decision to uphold Blakely in reference to federal guidelines, then, Mauer predicts, Congress will be brought into the picture to alter the federal guidelines to fit the court's ruling.

"There are two directions: they are going to set up a system where judges can have more discretion or, will they make sentencing more mandatory than it currently is," he said.

Wool said that if Congress goes toward more mandatory minimums, then correctional systems could see longer prison sentences.

"In the federal system, a far greater number (even those that are appeal cases) involve judicial decision making. It will likely affect more than half of the federal cases," Wool said.

The Sentencing Project has issued statements of concern about how Congress will come down on the sentencing guidelines.

"If one judges by recent bills and amendments proposed by Congress, it seems that some members are inclined toward laws that ensure harsher, more punitive sentences, in part by stripping federal judges of their already much-reduced discretion to tailor sentences to the individual offender," said Mauer in a recent editorial.

State guidelines will not have to change in this way. Because the percentage of cases affected by Blakely is so small, any sentence changes that result would also not be statistically significant for state prison systems.

"There's not that sense of panic you hear from the federal system," said Mauer.

On the state level, some seem poised to make legislative changes that loosen mandatory minimums. None of these measures has seen more attention recently than the recent effort in California to do away with three strikes.

Amending Three Strikes

A ballot initiative to alter California's three strikes law failed last week, but only by a margin of 53 percent to 47 percent, highlighting the public's desire to make some changes to the state law.

Although many other states have adopted three strikes laws, California is the only state that allows judges to impose 25-years-to-life prison terms for a non-violent third strike. Proposition 66 would have required the third strike to be a violent or serious felony in order to require a life sentence. 

Proposition 66 was crafted by Citizens Against Violent Crimes and would have allowed prisoners serving third strike sentenced for non-violent offenses to apply for re-trial. This was the cornerstone of the opposition's message to voters. The current and former California governors and the state's district attorneys all opposed the law change stating that it would have released thousands of offenders from prison.

"The opposition got the message out and the proponents maybe tried to bite off too much. Maybe a more modest version would have passed and one sees that generally, making changes retroactively is tricky because it means the immediate release of people from the system and it raises fear," said Wool.

Jim Benson, Vice Chairman of Citizens Against Violent Crime, said that the number of voters who did support the proposal shows that reform has momentum.

"It may provide the impetus for people to support something and indications are that it may be the case," he said.

Benson said that despite the vote, people do not support life sentences for non-violent crimes.

"I think especially in regard to rules pertaining to simple drug possession there's a general sense that those types of things should have a different kind of treatment," said Benson.

Those who have done violent crimes for the first two strikes, Benson said, maybe should not be let out of prison in the first place and have the chance to obtain a third strike.

Benson added that the activity around Proposition 66 has already caused serious discussion among state lawmakers, which may mean action from the legislature on this issue long before the next election cycle.

"There's some [activity] going on that the legislature might be able to act with some support from the governor and district attorneys' support. We hope that continues. I think 4.5 million people [voting for the proposition] sends a very large message that it is not the most effective policy," Benson said.

Other sentencing observers also predict that three strikes and other sentencing reforms are on the horizon.

"I think that there has been a sizable shift in fear of crime and with that shift has come a change in the public's attitude about how we should respond to crime -- with more treatment and more prevention," said Schiraldi.

But will this only be one end of a pendulum swing in terms of public opinion towards crime and criminals, or something more lasting?

Schiraldi thinks sentencing reform this time around will have more life than that.

"I feel fairly certain that my kids or grand kids will come to me and ask 'How was it that you had the highest incarceration rate in the world?' the way I ask about the internment of the Japanese or Jim Crow laws," said Schiraldi. "We live our little lives and assume this span [of history] is THE span, but there will be a time where the standards will progress so we don't rely as heavily on the incarceration of human beings as we do now."

Resources:

Justice Policy Institute - www.justicepolicy.org

The Sentencing Project - www.sentencingproject.org

Vera Institute of Justice - www.vera.org