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July 9, 2004 - The Drug War Chronicle (US Web)

In The Wake Of Blakely: Federal Sentencing Chaos As Defense Attorneys, Prosecutors, Lawmakers Ponder How To Respond

Last week's US Supreme Court decision finding Washington State's sentencing guidelines unconstitutional continues to wreak havoc in the federal criminal justice system. While the court's ruling in Blakely v. Washington did not directly throw out the federal sentencing system in place since 1987, nearly everyone involved in the matter is working under the assumption that the federal sentencing guidelines as we know them are headed for the ash heap of history. The question now is what comes next?

In Blakely, the court held that judges cannot increase prison sentences beyond the statutory maximum based on facts that were never proven before a jury. Such a practice is a linchpin of the federal sentencing system, where judges routinely add years to prison sentences based on facts, such as quantities of drugs involved, which are determined by a judge at sentencing using a lesser standard of proof than that required to win convictions in front of a jury.

While the long-term ramifications of Blakely are unclear at this point, the immediate impact has been dramatic and devastating for the federal criminal justice system. Before the week was out, a federal judge in Utah had declared the federal guidelines unconstitutional, based on Blakely. Earlier this week, a federal judge in West Virginia came to the same conclusion.

Other judges have either meted out dramatically more lenient sentences or postponed sentencing hearings until they can figure out what is going on. In Washington, US District Court Judge Thomas Penfield Jackson cut the sentence of tobacco farmer Dwight Ware, who engaged in a standoff with police on the National Mall, from six years to 16 months, allowing Ware to walk free on time served. Other judges have made similar cuts in sentences recently imposed. In a West Virginia case, the judge reduced a methamphetamine sentence from 20 years to one year.

After being rocked back on its heels, the Justice Department responded late last week with a memo instructing prosecutors how to deal with a post-Blakely world. While that memo, authored by Deputy Attorney General James Comey, argued that Blakely didn't apply to federal sentencing, it also advised prosecutors to try such tricks as convincing defendants to waive their right to appeal their sentences. It also counseled prosecutors to add any facts that could increase sentences to their indictments and prove them before a jury.

Congress is also bestirring itself. A hearing before the Senate Judiciary Committee on the issue is set for Tuesday. Blakely also came up this week in a House Judiciary Committee hearing on Rep. James Sensenbrenner's new mandatory minimum drug sales bill. There, Justice Department representatives warned Congress that it should be careful with any adjustments to sentencing policy until Blakely shakes out. The key point is that Blakely has unequivocally broken the federal sentencing system, though the shape of the fix is not yet known.

"This is the closest thing to legal anarchy I've seen in my lifetime," said Douglas Berman, professor of law at Ohio State University's Moritz College of Law and publisher of the Sentencing Law and Policy web log (blog). "This represents a fundamental shift in power, at least for now. Before this, all the levers of power were disproportionately in the hands of prosecutors. That's all been scrambled by Blakely, but who gets the bigger clubs now remains to be seen," he told DRCNet.

That opinion was shared by Frank Bowman III, a law professor at the Indiana University School of Law, who told the House Judiciary subcommittee this week it needed to be cautious about adding anything to federal sentencing law right now. "It is not an exaggeration to say that the federal criminal justice system is in chaos," he said.

"Blakely was a blockbuster, concurred Jack King, communications director for the National Association of Criminal Defense Lawyers ( "Things are really in a state of flux. Some people are pushing at the extremes declaring the whole system unconstitutional, but that contradicts Congress' intent. Congress wanted to limit judicial discretion. This is the best thing that could have happened because the system had fossilized. Maybe now we can start over, but if in the meantime defendants are getting lesser sentences, who is to say that's a bad thing?"

Not the people at Families Against Mandatory Minimums (, who advocate against the draconian sentences incurred by tens, perhaps hundreds of thousands of prisoners under mandatory minimum laws, mainly for drug offenses. But, as a group advocating for those prisoners, FAMM is cautious. "There is no definitive answer as to how this will shake out," said Mary Price, lead counsel for the group. "There are a number of proposals being floated, ranging from making the guidelines advisory to increasing federal statutory maximum sentences to fixing the guidelines as Kansas did so the relevant facts will have to be pled or proven before a jury," she told DRCNet. "The Senate will be holding hearings on this next week, and that indicates to me that the Congress will go forward with one of these proposals."

There is an immediate challenge and a longer-term one, said Price. "If we are faced with a hasty legislative remedy, we need to ensure that whatever is adopted has a sunset provision, so we have a chance to revisit laws made in haste," she said. "In the long run, we have to take a careful look and build a system that ensures sufficient judicial discretion while protecting people's Sixth Amendment right to a jury trial."

As an organization representing numerous federal prisoners, FAMM must be careful not to raise hopes only to see them dashed, Price said. "We are telling our people what the decision said, and we have to tell those who have been incarcerated for a long time that this doesn't affect their cases, at least for the time being. We are telling people to hold on. We don't want to get people's hopes up just yet because we don't know how this will play out. The future is being shaped right now," she said.

Fearing a fix that could be worse than the current system, NACDL is calling for a national commission to resolve the issue. "We don't think the guidelines are dead," said King after conferring with NACDL leaders at mid-week. "What we see here is an opportunity not seen since 1984 to create a truly just and rational federal guidelines scheme," he told DRCNet. "What we need now is a neutral analysis of the sentencing guideline systems at both the state and the federal level. We think a special commission of judges, prosecutors and defense attorneys should be empanelled to find the best way of reconciling the guidelines with the Sixth Amendment," King said.

"We have sent a letter to the Attorney General and the Administrative Office of the Courts urging them to form a study commission to reconcile the guidelines with Blakely," said King. "What we don't want to see is some sort of stupid legislative quick fix that would lead to some extremely harsh and unjust sentences in many cases. One case is too many, of course, but a quick fix would do that in a whole lot of cases."

Berman also worried about a fix that turns out to be even more severe than the system undermined by Blakely. "From what I've heard," he said, "the most prosecutor-friendly fix is to adjust the maximum sentences. Instead of 18-to-24 months, it could become 18-to-120 months. Judges would have the discretion to go up on sentences, but not down. This would make sentences much more harsh. Still, even that is shaky because even Congress might balk at such a draconian fix. But the murmurs that the Department of Justice will go to Congress make sense. They have lost in the courts in various ways, and they have to think that Congress will be friendlier than the courts."

And so things stand 10 days after the Supreme Court threw a monkey wrench into the machinery of the federal courts. Many, many questions remain: What about retroactivity? Is there a way of making the guidelines compatible with Blakely? What, if anything, will Congress do? But one thing appears certain at this point: The federal sentencing system as it has existed for the past twenty years is doomed. The big question, and the looming fight, is over what comes next.

For serious Blakely decision aficionados, check out the following web sites:

Berman's Sentencing Law and Policy blog:

Columbia University law student Jason Hernandez' Blakely Blog:

The Blakely archives at the progressive criminal justice web site TalkLeft:

Working to end drug war injustice

Meet the People Behind The U.S. Sentencing Guidelines

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