Amicus Curiae Brief — Blakely v. Washington

eS

No. 02-1632

IN THE

Supreme Court of the United States

RALPH HOWARD BLAKELY, JR.,

Petitioner,

vs.

STATE OF WASHINGTON,

Respondent.

On Writ of Certiorari to the

Washington Court of Appeals, Division III

— —_— _ —_ EEE |= SSS

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

——[——_—— —_—_ — —_ — — _ _ — _ ———_ _ —_ —_ — EEE — SESE SS—

KENT S. SCHEIDEGGER

Counsel of Record

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Phone: (916) 446-0345

Fax: (916) 446-1194

E-mail: cjlf@cjlf.org

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

QUESTIONS PRESENTED

This case involves a system of guided discretion in sentenc-

ing, implemented through sentencing guidelines. The judge has

discretion to depart upward or downward from the standard

sentence based on any aggravating or mitigating factors not

accounted for in the definition of the offense or calculation of

the standard sentence. The case presents in following ques-

tions:

1. In such a system, does the rule of Apprendi v. New

Jersey require that the facts used to justify an upward departure

be treated as elements of an offense, i.e., found by the jury and

proven beyond a reasonable doubt?

2. Does the answer to Question 1 depend on whether the

standard range is established by the legislature directly by

statute or indirectly through a sentencing commission?

— z=

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TABLE OF CONTENTS

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ED Gvincccccccccsduceccesescccees iv

REGGIE scccccecceceoccecocuceesees l

;

Summary of facts and case... . 2... cece eee ee ees 2

Summary of argument ............. vcceedddceseses 3

FETT og cis ceccccccccccccccccccecccscecesseees 4

I

Sentencing reform through structured discretion

should not be penalized with additional constitutional

PEED hc cecccececscccecascedtccececeescosse 4

Il

There is no basis for distinguishing the Washington

system from the federal system for Sixth Amendment

SIGE cccccccctccsccsccccecoessoneceesesese 10

Il

The relevant “range,” for purposes of Apprendi, is the

range set by statute for Class B felonies ............. 12

CORED occ ccccccccccccscccccccescccscoseeces 15

(iii)

iv

TABLE OF AUTHORITIES

Cases

Apprendi v. New Jersey, 530 U. S. 466, 147 L. Ed. 2d 435,

120 S. Ct. 2348 (2000) ............... 5, 10,11, 12, 14

Dennis v. United States, 339 U. S. 162, 94 L. Ed. 734,

ers Gah PE 46d6000ssdeccenesctecenseaces 5

Edwards v. United States, 523 U.S. 511,

140 L. Ed. 2d 703, 118 S. Ct. 1475 (1998) ........... 8

Furman v. Georgia, 408 U. S. 238, 33 L. Ed. 2d 346,

Pe iN acstibadécecbhaucusseaneseees 6

Hewitt v. Helms, 459 U. S. 460, 74 L. Ed. 2d 675,

TT + descuvnensencencesssus sence 9

Koon v. United States, 518 U. S. 81, 135 L. Ed. 2d 392,

on cnctenegeeenncoenettn 5, 6,7

Loving v. United States, 517 U. S. 748, 135 L. Ed. 2d 36,

ee es ST T nebisadeduduansancecenndees 11

Mistretta v. United States, 488 U. S. 361,

102 L. Ed. 2d 714, 109 S. Ct. 647 (1989) .......... 5, 6

Mitchell v. United States, 526 U. S. 314,

143 L. Ed. 2d 424, 119 S. Ct. 1307 (1999) ........... 7

Payne v. Tennessee, 501 U. S. 808, 115 L. Ed. 2d 720,

ee ee ee ED nweditndidedduwenescodaueeses 8

Ring v. Arizona, 536 U. S. 584, 153 L. Ed. 2d 556,

Se a A EE od evenecescnstsatecss 10, 11, 13

Sandin v. Conner, 515 U. S. 472, 132 L. Ed. 2d 418,

ST nnbdudeenckdetaducndcsecens 9

Sawyer v. Whitley, 505 U. S. 333, 120 L. Ed. 2d 269,

ee ED o6sncoescedsudeséeresscceue 6

Shafer v. South Carolina, 532 U. S. 36,

149 L. Ed. 2d 178, 121 S. Ct. 1263 (2001) .......... 13

State v. Blakely, 111 Wash. App. 851, 47 P. 3d 149

GREE oc sasccecocusvesagvereseesssceseeereecees 3

State v. Gore, 143 Wash. 2d 288, 21 P. 3d 262 (2001) .... 3

Tuilaepa v. California, 512 U. S. 967,

129 L. Ed. 2d 750, 114 S. Ct. 2630 (1994) ..... ‘ne

United States v. Banks, 540 U.S. __ (No. 02-473,

DE? sreasheseocecevencesseesescsovecss 8

United States v. Watts, 519 U.S. 148,

136 L. Ed. 2d 554, 117 S. Ct. 633 (1997) .......... 7,8

Williams v. New York, 337 U. S. 241, 93 L. Ed. 1337,

Se ae SEE vc cccescubacsescoconesecosnne 6

Woodson v. North Carolina, 428 U. S. 280,

49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976) ............. 6

United States Statutes

PU Ee BE, SEG SGD co cccccccccesscvcccesees 8

State Statutes

Former Wash. Rev. Code § 9.94A.120(2) ............. 13

Former Wash. Rev. Code §9.94A.390 ............4.. 13

Wash. Rev. Code § 9.94A.535 ......... 0.0 c eee eeees 14

Wash. Rev. Code §9A.20.021 .............. eee eeee 14

IN THE

Treatise

| W. LaFave, Substantive Criminal Law (2d ed. 2003)... 11 Supreme Court of the United States

Miscellaneous

: RALPH Ho , IR.,

K. Halle, The irrepressible Churchill (1985) ............ 9 GDL AD ita ian

W. Rehnquist, Remarks to the Federal Judges Assn. Bd. of VS.

Directors (May 5, 2003) (http://www.supremecourtus.gov/

publicinfo/ speeches/sp 05-05-03.htmil) ............. 8 STATE OF WASHINGTON,

, Respondent.

Reitz, Sentencing, in The Handbook of Crime and

Punishment (M. Tonry ed. 1998) ........ instante tus 6 a

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a non-

profit California corporation organized to participate in

litigation relating to the criminal justice system as it affects the

public interest. CJLF seeks to bring the constitutional protec-

tion of the accused into balance with the rights of the victim

and of society to rapid, efficient, and reliable determination of

guilt and swift execution of punishment.

1. This brief was written entirely by counsel for amicus, as listed on the

cover, and not by counsel for any party. No outside contributions were

made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.

—_——

Sentencing Guidelines and similar systems in numerous States,

just as Apprendi v. New Jersey inevitably brought down long-

established capital sentencing systems.

Defendant’s thesis would require treating as an “element”

every fact used to depart upward from the standard sentencing

range for an offense. It would likely require similar treatment

for facts used to compute the standard sentence. Requiring

aggravating facts to be proved beyond a reasonable doubt to a

jury while mitigating facts have no such requirement would

substantially skew sentencing in guided discretion systems.

These systems have been constructed on the understanding that

sentencing facts are determined on a symmetrical basis, just as

they always were in the unfettered discretion systems. Skewing

them downward in this manner would result in wholesale

reductions of sentences below what the people, through the

democratic process, have determined to be necessary for their

protection from crime. This result would be contrary to the

interests of victims of crime and the law-abiding public that

CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

The trial court made extensive findings of fact in this case.

J. A. 40-49. Briefly, defendant Ralph Noward Blakely and his

wife Yolanda Blakely were involved in a bitter divorce and

property dispute. Defendant went to Yolanda’s home, in

violation of a restraining order, and accosted her as she returned

from her mailbox. He duct-taped her head and wrists and

threatened her with death if she did not cooperate, apparently

put her in a plywood box, threatened her with a knife to her

throat and nostrils, and kept her there for hours until their 13-

year-old son, known as Ralphy, returned. Defendant threatened

Ralphy that he would shoot his mother if he did not cooperate

or if he “tried anything.” Cooperation included driving his

mother’s car on a public highway, even though he was only 13.

Ralphy later escaped. Defendant transported Yolanda through

three states to the home of Mary Gillespie, who managed to

contact the police.

Psychiatric diagnoses are conflicting as to whether defen-

dant has schizophrenia. The evaluation which the trial court

found to be the most thorough, and apparently credited, found

that he has personality disorders.

The trial court made several conclusions. J. A. 49. Defen-

dant’s personality disorders did not significantly impair his

capacity to appreciate the wrongfulness of his conduct or

confiorm to the requirements of the law. The present offense

involved deliberate cruelty and domestic violence within the

sight of a minor child. The facts constitute substantial and

compelling reasons to depart from the standard range sentence

(49 to $3 months, with a firearm enhancement) and impose an

exceptional, aggravated sentence. “A sentence of 90 months

incarceration is a just and deserved punishment for defendant's

conduct.” bid.

The Washington Court of Appeals affirmed. Among other

issues, it rejected Blakely’s Apprendi claim, i.e., that upward

departure facts must be submitted to a jury and proved beyond

aneasonable doubt. State v. Blakely, 111 Wash. App. 851, 870-

871, 47 P. 3d 149, 159 (2002); J. A. 19. The Washington

Supreme Court’s decision in State v. Gore, 143 Wash. 2d 288,

314, 21 P. 3d 262, 276-277 (2001) was binding precedent to the

contrary.

The Washington Supreme Court denied discretionary

review. J. A. 60. This Court granted certiorari on October 20,

2003.

SUMMARY OF ARGUMENT

Guided discretion in sentencing is an important advance in

the quest for fair, proportionate, and evenhanded sentencing.

It avoids the opposite and equally noxious extremes of the rigid

common law mandatory system and the arbitrary system of

unfettered discretion. Imposing Apprendi requirements would

skew this system, distorting it from the balance struck when it

was adopted. Making aggravating facts substantially more

difficult to prove than mitigating facts would skew sentences

downward on a wholesale basis. Legislative reaction to such a

judicial distortion could ultimately hurt defendants on the low

end of the culpability scale.

The fact that the Washington sentencing grid was enacted

directly by the legislature, rather than indirectly through a

sentencing commission, is not a valid basis for distinguishing

the system from the federal system. Apprendi is based on the

functional equivalence of a fact to an element of an offense, not

on the source of the requirement. The entire guidelines

approach to sentencing stands or falls in this case.

The open-ended factors that may be used for departure do

not resemble elements within the meaning of Apprendi. The

broad discretion and the myriad facts that may be considered

make this, in terms borrowed from the capita! cases, a selection

decision and not an eligibility decision. Apprendi does not

apply.

ARGUMENT

I. Sentencing reform through structured discretion

should not be penalized with additional

constitutional restrictions.

“Let no good deed go unpunished,” would be an apt subtitle

for the defendant’s brief in this case. The State of Washington,

like the Congress and many of its sister States, has turned to a

structured-discretion approach to sentencing through sentencing

guidelines.” Defendant’s contention, in essence, is that the

2. We understand that the Washington system will be explained in detail

in the State’s brief and therefore will not repeat that discussion here.

system of structured discretion brings down upon the state Fifth

and Sixth Amendment requirements that unquestionably did not

apply to the system of unfettered discretion it replaced. See

Koon v. United States, 518 U. S. 81, 92 (1996) (describing

change made by federal Sentencing Reform Act of 1984). Such

a holding would be a substantial setback for the quest for fair

and effective sentencing policy.

Sentencing policy in America has gone through three

phases. At the time of the founding, the trial judge in a felony

case had little discretion. See Apprendi v. New Jersey, 530

U. S. 466, 478-479 (2000). The sentence followed from the

crime as determined by the jury’s verdict and the peculiar issue

of benefit of clergy. See ibid. Apprendi asserts an “invariable

linkage of punishment with crime” at this time, mentioning

benefit of clergy only in a parenthetical. Jbid. By failing to

recognize the central role of benefit of clergy in common-law

sentencing practice, Apprendi seriously overstated the linkage

between offense and punishment at the time of the founding.

Brief for Criminal Justice Legal Foundation as Amicus Curiae

in Ring v. Arizona, No. 01-488, pp. 3-5. Even so, for present

purposes it is sufficient to note that punishment of felons was

determined by a discrete number of facts and was not discre-

tionary with the judge. See id., at 5-6.

The shortcomings of the common law system are obvious.

No criminal code, no matter how detailed, can hope to measure

the culpability of individual defendants in real cases merely by

the speciiication of predetermined elements of offenses. Such

a system imposes equal sentences on defendants of widely

differing culpability. “It is a wise man who said there is no

greater inequality than the equal treatment of unequals.”

Dennis v. United States, 339 U. S. 162, 184 (1950) (Frank-

- furter, J., dissenting).

The next phase in sentencing policy was a lurch to the

opposite extreme. Under this system, the judge had discretion

to choose the sentence within a broad range. See Mistretta v.

United States, 488 U. S. 361, 363 (1989). Not only was the

discretion broad, but it was essentially unreviewable. The trial

“court’s determination as to what sentence was appropriate met

with virtually unconditional deference on appeal.” /d., at 364;

see also Koon, 518 U. S., at 96.

For a decision as controversial and value-laden as the

punishment of crime, such unfettered discretion inevitably

produced widely disparate sentences for similarly situated

defendants. For capital cases, both unfettered discretion and

fixed sentences have been declared unconstitutional. See

Furman v. Georgia, 408 U. S. 238, 239-240 (1972) (per

curiam); Woodson v. North Carolina, 428 U. S. 280, 301

(1976) (lead opinion). Guided discretion is now the only

constitutional option. See Sawyer v. Whitley, 505 U. S. 333,

369 (1992) (Stevens, J., concurring in the judgment).

For noncapital sentencing, the Congress came to the same

conclusion for much the same reason. So did many of the

States.’ Under the broad, unreviewable discretion existing

before 1984, Congress found “ ‘federal judges mete out an

unjustifiably wide range of sentences to offenders with similar

histories, convicted of similar crimes, committed under similar

circumstances.’” Koon, 518 U. S., at 92 (quoting S. Rep. No.

98-225, p. 38 (1983)). Prior to the Sentencing Guidelines, the

change from the rigid approach of the common law to the

system of standardless discretion had only replaced the equal

treatment of unequals with the unequal treatment of equals.

That was little or no improvement.

The precedents are clear beyond question that under the

standardless discretion system, the findings of facts that went

into the judge’s decision were not subject to the same constitu-

tional restrictions as the elements of the offense. See, e.g.,

Williams v. New York, 337 U.S. 241, 252 (1949).

3. “By 1996, more than twenty U. S. jurisdictions . . . had chartered”

sentencing commissions. Reitz, Sentencing, in The Handbook of Crime

and Punishment 547 (M. Tonry ed. 1998).

“Our case law has long recognized a natural dichotomy

between the guilt and penalty phases. The jury trial right

contained in the Sixth Amendment . . . does not apply et

sentencing .... Likewise inapplicable at sentencing is the

requirement of the Due Process Clause that the prosecution

prove the essential facts beyond a reasonable doubt.”

Mitchell v. United States, 526 U. S. 314, 337 (1999)

(Scalia, J., dissenting).

“The Guidelines did not alter this aspect of the sentencing

court’s discretion.” United States v. Watts, 519 U.S. 148, 152

(1997) (per curiam). In Watts, this Court upheld the use of a

firearm offense in calculating the sentence for a drug offense,

despite Watts’ acquittal of the firearm offense. /d., at 149-150.

The basis of the holding was that acquittal only established

reasonable doubt, while use of the offense for setting the

sentence required only preponderance of the evidence. See id.,

at 156-157. Acceptance of defendant’s argument in the present

case would require overruling Watts. If a fact authorizing

departure from the presumptive sentence is subject to the jury

trial and burden of proof requirements for elements of an

offense, facts which go into the calculation of that sentence

must be also.

The defendant’s proposed restriction of sentencing informa-

tion would be a step backward for sentencing reform. The

essence of a guided discretion system is to establish a “heart-

land” range of sentences, considering the factors involved in

typical cases, but allow discretion to “depart” when the case is

unusual in a way not accounted for by those factors. See Koon,

518 U. S., at 93-94. These departures are intended to be

symmetrical, upward based On aggravating facts and downward

based on mitigating facts. See id., at 94.

Defendant’s proposed limitation would fundamentally alter

the bargain struck by the legislature in enacting a guided

discretion system, skewing the distribution of sentences

downward. Under this limitation, facts justifying a downward

departure need only be established by a preponderance of

evidence, while those for upward departure must be established

beyond a reasonable doubt. Crimes committed by the defen-

dant which can be proven by a preponderance of the evidence

but not beyond a reasonable doubt have long been established

as a legitimate factor in determining the sentence. See Watts,

519 U. S., at 152-153. Similarly, if a drug dealer succeeds in

flushing away most of the cocaine between the police officers’

knock-and-announce and their entry, see United States v.

Banks, 540 U.S. __ (No. 02-473, Dec. 2, 2003) (slip op., at 9),

the quantity should still be considered, if established by

preponderance, for the purpose of setting the sentence within

the statutory range, even though the range is determined by the

amount that can be proven beyond a reasonable doubt. Cf.

Edwards vy. United States, 523 U. S. 511, 515 (1998) (unani-

mous).

The perception that sentencing under the Guidelines is

being skewed downward can have regrettable legislative

consequences. “Congress has recently indicated rather strongly,

by the Feeney Amendment, that it believes there have been too

many downward departures from the Sentencing Guidelines.”

W. Rehnquist, Remarks to the Federal Judges Assn. Bd. of

Directors (May 5, 2003) (http://www.supremecourtus.gov/

publicinfo/speeches/sp_05-05-03.html). The resulting legisla-

tion “could amount to an unwarranted and ill-considered effort

to intimidate individual judges in the performance of their

judicial duties.” /bid.; see Pub. L. 108-21, § 401, 117 Stat. 650,

667-676.

Amicus Kansas Public Defender says there is no need to

worry, because the Kansas Legislature meekly acceded to the

judicial skewing of its system. Brief for Kansas Public De-

fender as Amicus Curiae 6-7. This single example provides

little, if any, basis for believing that other legislatures will react

the same way.

Sentencing under skewed information is fundamentally

unfair to the people, as this Court recognized in Payne v.

Tennessee, 501 U.S. 808, 825 (1991). Legislative reaction to

correct the balance is likely, and it may take the form of further

restrictions on downward departures or more mandatory

minimums. Given what we have already seen with the Feeney

Amendment, these possibilities are quite real.

Once before, this Court has penalized states for structuring

discretion, placing on them a greater burden in litigation than

was placed on States that left officials’ discretion unfettered

and therefore subject to greater abuse. That was a mistake that

has been corrected, and it should not be repeated.

In Hewitt v. Helms, 459 U. S. 460 (1983) and subsequent

cases, the entitlement of a prisoner to due process protection in

prison disciplinary proceedings depended on the presence of a

state-created “liberty interest,” which in turn depended on the

presence of “mandatory language in the [prison] regulations.”

See Sandin v. Conner, 515 U. S. 472, 482-483 (1995). In

Sandin, the Court abandoned this approach, noting the “unde-

sirable effect[]” that the approach “creates disincentives for

States to codify prior management procedures in the interest of

uniform treatment.” /d., at 482.

Acceptance of defendant’s thesis would create a similar

disincentive for the structuring of sentencing discretion. Given

that unfettered discretion can be based on factfinding by the

judge with no greater burden of proof for aggravating facts than

for mitigating facts, converting those aggravating facts into

elements merely because the state structures the discretion

creates a disincentive for seeking uniformity. Conversely, it

creates an incentive to take one step backward to the arbitrari-

ness of unfettered discretion or two steps backward to the

rigidity of no discretion.

No system of discretion is perfect, and the Sentencing

Guidelines have their critics. But criticism of the guided

discretion approach (as distinguished from a criticism of

particular guidelines) calls to mind Winston Churchill’s famous

quip about democracy—the worst form of government except

for all the others that have been tried. See K. Halle, The

10

Irrepressible Churchill 236 (1985). Guided discretion produces

results that apportion punishment to culpability more evenhand-

edly than any of the alternatives. This approach to sentencing

should not be penalized without compelling reason, and there

is no compelling reason.

II. There is no basis for distinguishing the

Washington system from the federal system for

Sixth Amendment purposes.

Defendant seeks to distinguish the Washington system from

the federal on two grounds: that the system was enacted by the

Washington Legislature rather than a commission, Brief for

Petitioner 2, and that the grounds for upward departure are

slightly more restricted. /d., at 3, n. 2.

Amici NACDL and FAMA offer ominously that the

skewing of the federal Sentencing Guidelines may properly be

left for “a later day.” Brief for National Assn. of Criminal

Defense Lawyers and Families Against Mandatory Minimums

as Amici Curiae in Support of the Petition for Certiorari 14.

We have seen this divide-and-conquer gambit before. Compare

Apprendi v. New Jersey, 530 U.S. 466, 496-497 (2000) (capital

cases distinguishable, not controlling precedent), with Ring v.

Arizona, 536 U. S. 584, 609 (2002) (capital cases not distin-

guishable, Apprendi requires overruling).

Before Apprendi metastasizes any further, the implications

for overturning well-settled practices should be thoroughly

understood. If a decision for the defendant in the present case

is going to alter the balance struck by legislative compromise

not only in the State of Washington but also in the Congress

and in numerous states, see supra, at 6, that consequence

should be known now and considered carefully before deciding

to take such a step.

Apprendi does, of course, refer to the sentence ranges and

limits as “statutory” or “prescribed by the legislature” numerous

1]

times. See, e.g., 530 U. S., at 481. That does not mean,

though, that a presumptive sentence established directly by

statute is distinguishable for this purpose from one established

indirectly through a legislatively created commission. The

dispositive question is when a purported sentencing factor has

crossed the line so that it functions as an element of an offense

and must be treated as an element for jury trial and burden-of-

proof purposes. See id., at 494-495. That function does not

depend on the source of the factor.

The legislative branch has the authority to define elements

of crimes when it chooses to exercise it, but the authority is not

necessarily exclusive. The original English common law

crimes were defined in case law, not statutes, see | W. LaFave,

Substantive Criminal Law § 2.1(b), pp. 104-105 (2d ed. 2003),

and “most of the states in the beginning had common law

crimes.” /d., §2.1(c), at 106. Some states still have common

law crimes, despite the adoption of comprehensive criminal

codes. See id., §2.1(c), at 107, and n. 20. Although there are

generally no federal common law crimes, Congress can and has

“provided for common law crimes in the District of Columbia”

and federal enclaves. /d., §2.1(c), at 107-108. In military

justice, Congress can delegate the designation of death penalty

eligibility circumstances to the President. Loving v. United

States, 517 U. S. 748, 769 (1996). These circumstances are

elements for the purpose of Apprendi. See Ring, 536 U. S., at

609.

An “offense” is not necessarily defined directly by a statute,

and in the States may not even be indirectly defined by statute.

The central question of whether a fact is an element of an

offense for jury trial and burden-of-proof purposes therefore

cannot depend on whether the legislature defined the offense

directly, indirectly, or not at all.

Defendant’s argument, in essence, is that the facts defining

a presumptive sentence as established in the Washington

Legislature’s sentencing grid amount to an “offense” for

Apprendi purposes and that any fact needed to depart upward

12

effectively amounts to an element of a greater offense. If that

were true for a grid enacted directly by the legislature, it would

be equally true for the grid established indirectly by Congress

through the Sentencing Commission. It would be nonsensical

to hold that the sentencing grid defines offenses if the State

adheres to the stricter separation-of-powers view of the

Mistretta dissent, but an identical grid placing an identical

restraint on the sentencing judge does not define offenses if the

legislature delegates its creation to acommission. See Appren-

di, 530 U. S., at 523, n. 11 (Thomas, J., concurring).

The second claimed ground of distinction is that some

duplication of elements with sentencing factors is allowed in

the federal system but not the Washington system. Brief for

Petitioner 3, n. 2. This is a perverse rationale. See supra, at 4.

If this Court should declare present Washington practice

unconstitutional on this basis, the Washington Legislature

could reinstate it by removing a protection presently extended

to defendants in that State. Constitutional principles ought not

depend on such quirks.

Ill. The relevant “range,” for purposes of Apprendi,

is the range set by statute for Class B felonies.

The rule of Apprendi v. New Jersey, 530 U. S. 466 (2000)

applies to a factual finding, however designated, that is “the

functional equivalent of an element of a greater offense than the

one covered by the jury’s guilty verdict.” /d., at 494, n. 19. It

does not apply to “a circumstance . . . that supports a specific

sentence within the range authorized by the jury’s finding that

the defendant is guilty of a particular offense.” /bid. (emphasis

in original). The present case turns on the question of what is

the “range” and what is “authorized” in a guidelines system.

The essence of a factor subject to Apprendi is that “it

increase[s] . . . the maximum range within which the judge

could exercise his discretion... .” /d., at 474. Defendant

maintains that the standard range sentence in the sentencing

13

grid is the relevant range, because the sentencing judge must

find aggravating circumstances in order to depart. Brief for

Petitioner 13-14. This argument distorts Apprendi beyond

recognition.

In a system of unfettered, unreviewable discretion, a

sentencing judge could impose a maximum sentence in the

absence of any aggravating facts whatever. Such a sentence,

although legal, would be arbitrary and unjust. That is why

Congress and numerous States have abandoned such systems

and replaced them with guided, reviewable discretion. An

open-ended requirement that the judge find some aggravating

facts before imposing a sentence at the high end of a range is a

far cry from the sentence enhancement in Apprendi that

required a finding of one particular fact in order to raise the

ceiling.

The capital cases are instructive here, because this is the

area where guided discretion has received the greatest scrutiny.

The cases clearly separate the eligibility decision from the

selection decision. See Tuilaepa v. California, 512 U. S. 967,

971 (1994); Shafer v. South Carolina, 532 U.S. 36, 50 (2001)

(“discrete and sequential functions”). To raise the ceiling of

punishment which may be considered from life in prison to

death, the jury must find an aggravating circumstance off a

prescribed, statutory list defined in advance and subject to

review for vagueness. See Tuilaepa, supra, at 972. In the

selection decision, on the other hand, open-ended consideration

of a myriad of factors is allowed. /d., at 979-980. The eligibil-

ity factors are subject to Apprendi. Ring v. Arizona, 536 U. S.

584, 609 (2002). The facts considered in the selection decision

are not. See Brief for Criminal Justice Legal Foundation as

Amicus Curiae in Schriro v. Summerlin, No. 03-526, pp. 20-21.

The open-ended nature of the departure decision in Washington

noncapital sentencing makes it a selection decision, not an

eligibility decision. Former Wash. Rev. Code § 9.94A.120(2),

App. to Pet. for Cert. 52a, merely required “substantial and

compelling reasons” to depart, and former § 9.944.390 pro-

~

14

vided a list of factors that were expressly illustrative and not

exclusive. See App. to Pet. for Cert. 60a; see also Wash. Rev.

Code § 9.944.535 (same language in present statute). By

requiring that the sentencing judge find aggravating circum-

stances to depart from the standard range, Washington has

simply added structure, guidance, and reviewability to the

discretionary sentencing choice that Apprendi unmistakably

held was not subject to its restrictions. See 530 U. S., at 494,

n. 19.

In footnote 16, the Apprendi Court acknowledged, in

response to the dissent, that a State could achieve the same

result as the New Jersey statute by extending statutory maxi-

mums and then “giving judges guided discretion as to a few

specially selected factors within that range ....” /d., at 490,

n. 16. The Court counted on “structural democratic con-

straints” and other precedents, not the Apprendi rule, to prevent

that from actually happening. /d., at 490-491, n. 16. Ifa

guided discretion system enacted as a subterfuge to evade

Apprendi would not be subject to its rule, then a guided

discretion system enacted for the entirely proper purpose of

dispensing evenhanded justice surely is not.

The sentencing range, for the purpose of Apprendi, is the

range for Class B felonies set forth in Wash. Rev. Code

§ 9A.20.021. The facts supporting departures in this system are

true sentencing circumstances, not elements in disguise, and

may be found by the judge by the preponderance of the evi-

dence.

15

CONCLUSION

The decision of the Washington Court of Appeals should be

affirmed.

January, 2004

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation