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July 16, 2004 - The Drug War Chronicle (US Web)

In the Wake of Blakely: Senate Committee Hearing Seeks Sentencing Fix, 2nd Circuit Seeks Quick Supreme Court Hearing

The US Supreme Court's June 28 decision in Blakely v. Washington continues to send shockwaves through the federal courts, and now those waves have reached Capitol Hill. Even as federal judges across the country postpone sentencing, cut sentences, and rule the federal sentencing guideline structure unconstitutional (one has found they are indeed constitutional), the Senate Judiciary Committee held a hearing Tuesday to begin to seek a fix for the Blakely mess.

In its decision in Blakely, the Supreme Court threw out Washington State's sentencing guidelines, holding that they improperly conveyed to judges the authority to impose sentences exceeding statutory maximums based on facts never proven before a jury. While the Supreme Court decision did not explicitly overturn the federal sentencing guidelines, judges and legal scholars around the country have read the decision to mean that the current federal guidelines system is doomed, and have been acting accordingly.

Since the Blakely decision, federal appeals court judges in the 6th and 7th Circuits have ruled the federal guidelines unconstitutional, while in the Bryan Epis case (see story this issue) the 9th US Circuit Court of Appeals has instructed lower court judges to apply Blakely if and when he is resentenced. The 5th US Circuit Court of Appeals has upheld the guideline scheme, while the 2nd Circuit has sent the Supreme Court an emergency request to clarify its decision and "adjudicate promptly the threshold issue of whether Blakely applies to the federal sentencing guidelines."

Federal prosecutors across the country are now rushing to add aggravating factors that could result in harsher sentences to indictments, and plea bargaining in many districts is at a standstill. Under direction from the Justice Department, prosecutors are also aggressively trying to get defendants to sign "Blakely waivers," where, as part of a plea bargain, defendants would agree not to appeal their sentences based on the Blakely decision. But at least one US District Judge, Leonie Brinkema in Alexandria, Virginia, has told prosecutors she will not accept such waivers until she gets instruction from a higher court that they are constitutional.

"Blakely is having a revolutionary impact on the sentencing structure," said David Michael, a San Francisco defense attorney who helped defend California medical marijuana patient and grower Bryan Epis, who received an enhanced sentence because of aggravating factors found by a judge, not by a jury. "It was more than due," Michael said. "The government has been warned by judges for years about the dangers of what it was trying to do, about trying to usurp the power of the courts. Now the whole structure is threatened."

And Capitol Hill politicians are not waiting for the Supreme Court to bestir itself to bring order to the chaos. At a Tuesday hearing of the Senate Judiciary Committee, legislators heard a number of proposals to "fix" the Blakely problem.

Committee chair Sen. Orrin Hatch (R-UT) warned that since Blakely "the criminal justice system has begun to run amok" and raised the specter of judicial discretion out of control.

"I fear that some judges might view Blakely as an opportunity to selfishly garner judicial power in the hopes of restoring unlimited judicial discretion with respect to sentencing," Hatch worried, citing cases where judges dramatically cut sentences this month.

Hatch also made the bizarre argument that Blakely would somehow hurt defendants in plea bargaining. One possible fix, Hatch said, was that "Congress may respond by creating new mandatory minimum penalties to compensate for the unfettered discretion." But Hatch said he favored "raising the maximum penalties within a guideline range."

Ranking committee Democrat Sen. Pat Leahy of Vermont disagreed with the Supreme Court's Blakely decision, saying it "threatens a return to the bad old days" of indeterminate sentencing. But at the same time, Leahy recognized that the pendulum had swung too far on the side of harshness and rigidity, citing an "ever-increasing number of offenses" subject to mandatory minimum sentences "determined by politics rather than any systematic analysis of the relative seriousness of different crimes."

"The attitude underlying too many of these recent developments seems to be that politicians in Washington are better at sentencing than the federal trial judges who preside over individual cases, and that longer sentences are always better," Leahy complained. "Somewhere along the line we appear to have forgotten that justice is not just about treating like cases alike; it is also about treating different cases differently."

US District Judge Paul Cassell, who had ruled the guidelines unconstitutional last week, told the committee that despite the confusion in courts across the land, the judicial branch could resolve the question and Congress should move slowly and carefully.

That suggestion evoked sputters of disbelief from Leahy. "Judge Cassell, you say there's no crisis but you just held the entire criminal justice system unconstitutional?" he asked incredulously.

Sen. Lindsey Graham (R-SC) reacted similarly. Noting that four federal judges in Utah alone had arrived at different rulings on how to apply Blakely, Graham criticized Cassell for suggesting the Congress not move swiftly. "When you have four district judges in the state of Utah all rendering different opinions, it seems pretty close to chaos to me," said Graham.

But it was Indiana University law professor Frank Bowman and New York University law professor Rachel Barkow who provided concrete models for possible fixes. Bowman, reprising the arguments he made in a post-Blakely memorandum to the US Sentencing Commission, told the committee the Blakely problem could be fixed by simply raising sentence maximums to very high levels, thus removing the constitutional problem of judges raising sentences beyond the maximums. Under a Bowman-type scheme, offenses that currently garner a sentence of 12-18 months could instead garner 12-120 months.

But Barkow was having none of that. "Congress should flatly reject this proposal as unconstitutional," she told the committee. "As I have expressed elsewhere, I believe that Members of Congress take seriously their oath to uphold the Constitution. In this instance, obeying the oath requires rejection of Professor Bowman's proposal because it unconstitutionally interferes with the jury guarantee." Neither should Congress enact more mandatory minimum sentences, Barkow said, calling that option "significantly worse" than Bowman's loophole suggestion.

Instead, Barkow suggested a two-part approach. "First, Congress should immediately, as an interim measure, make the Guidelines advisory and not legally binding. This will give Congress and the Sentencing Commission sufficient time to devise a sound alternative while respecting and preserving the Constitution's jury guarantee in the meantime," she told the committee. Congress should then direct the Sentencing Commission to identify sentencing guideline factors it considers important enough to trigger longer sentences. "Any factor of such importance is required, by the Constitution, to be treated as an offense element to be found beyond a reasonable doubt by a jury. Only after the jury makes such a finding can the increased punishment be imposed."

So it goes in the first congressional effort to get a handle on the Blakely decision. From the comments of Hatch, Leahy, and the others, it appears the battle over federal sentencing will be waged on at least two fronts, the court and the Congress. And while Blakely so far appears to be largely a victory for defendants, if Congress moves in the wrong direction, the country could end up with a more rigid and severe sentencing structure than the one Blakely overthrew.

Visit to read the prepared statements for the Senate Judiciary Committee hearing.

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