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The politics of sentencing in the Ralph Howard Blakely case

Ralph Howard Blakely was rich. He and his wife, Yolanda, owned real estate across eastern Washington and Montana. But then Yolanda filed for divorce and moved out, obtaining a restraining order against her husband.

Two weeks before the start of a trial to resolve the family trust, Blakely surprised Yolanda as she walked back from her mailbox. He pushed her to the ground, duct-taped her mouth and hands and forced her into “a coffin-like plywood box” in the back of his pickup truck. “The box was about the same width and length as Ms. Blakely’s body and had air holes drilled into each end,” according to the subsequent opinion of the Washington Court of Appeals.

This is the time of year when the US Supreme Court issues most of its decisions in business law cases. (Manuel Balce Ceneta/Associated Press)

That was the moment when the couple’s 13-year-old son Ralphy, who lived with his mother, arrived home from football practice. He heard his mother yelling from inside the box in the back of his father’s truck. Blakely ordered Ralphy to get behind the wheel of his mother’s car and follow the truck, warning “that if he ‘tried anything,’ Mr. Blakely would shoot the box with a shotgun.”

Ralphy did as he was told. But Blakely had to stop and buy gas. “When Ralphy and his father entered the truck stop to pay, Ralphy shouted, ‘Call 9-1-1! Help us! He kidnapped us! He has my mom in a box!'” Blakely ran back to his truck and started to drive away. “Ralphy jumped on the pickup bumper and tried to release his mother from the box, but was knocked off when Mr. Blakely accelerated.”

Eventually Blakely reached the family’s land in Montana, where he stopped to use a neighbor’s phone. He called his older daughter to demand that she stop the upcoming trial. He also checked in with his stockbroker. The neighbor notified police.

Blakely was convicted of kidnapping and assault and sentenced under Washington law to a term of seven and a half years. That’s when the United States Supreme Court intervened.

So what are the politics of the Blakely case? Was it a left-wing or right-wing cause? I ask because the binary liberal-conservative scale remains the primary method almost all commentators use to characterize Supreme Court justices and their decisions.

David M. Dorsen was a friend of the late Justice Antonin Scalia, whose stature as conservative hero has only grown since his death. A couple years ago, Dorsen, a lawyer, published a book called The Unexpected Scalia: A Conservative Justice’s Liberal Opinions. Among Scalia’s liberal accomplishments, according to Dorsen, was knocking three years off Ralph Blakely’s sentence.

The late Supreme Court Justice Antonin Scalia speaks at Wesleyan University in Middletown, Conn., in March 2012. (Jessica Hill/Associated Press)

Writing for a 5-4 majority, Scalia ruled that Washington’s sentencing laws violated the sixth amendment’s right to a jury trial because they allowed a judge to impose a sentence within a set range, but required the judge to justify the particular result reached with reference to the facts of the case. (Blakely’s judge found that he acted with deliberate cruelty and committed domestic violence in front of a child.) The Washington system was similar to the federal Sentencing Guidelines which, just one year later, the Supreme Court ruled were constitutionally okay. So the constitutional problem Scalia identified with Washington’s statutes was that they were similar but not similar enough to the federal model.

Have you spotted what was so liberal about his opinion yet? In the introduction to his book, Dorsen explains that by “liberal,” he means opinions that support “extensive rights for criminal defendants.” Scalia’s opinion in the Blakely case meets that criterion. But Scalia himself claimed that the source of Blakely’s rights was the Constitution. If we take him at his word, then Dorsen’s formulation means it is “liberal” to do no more than the Constitution requires. If that’s liberal, what’s conservative?

Dorsen’s formulation makes sense only on the assumption that the Constitution didn’t actually compel any particular result in Blakely’s case but instead offered a choice between two or more equally-legitimate outcomes. Only on that assumption can Scalia’s decision be described as anything but unavoidable. But Scalia opted for the choice that benefited a wealthy white man who victimized a woman and child. Somehow I don’t think that’s destined to become a plank in the next Democratic Party platform, no matter how liberal the nominee.

The left-right scale is handy for sorting candidates for office. But most of the time it provides no useful information at all about judicial decisions, even those by the Supreme Court, our most political of courts. The whole classification effort is like trying to situate the North Pole on an east-west axis.

As for Blakely, he’s now serving an additional sentence for trying to hire a hit man to kill his ex-wife and daughter.

Joel Jacobsen is an author who recently retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at