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July 26, 2004 - The National Law Journal (US)

Proceed With Caution

By Barry Scheck and Ellen S. Podgor

The U.S. Supreme Court decision in Blakely v. Washington held that defendants have Sixth Amendment jury trial rights, such as the right to proof beyond a reasonable doubt, on all enhancements to a sentence. Blakely knocked the socks off everyone. Since the issuing of this decision on June 24, some have claimed that there is confusion in the courthouse merely because judges are interpreting new arguments raised by this decision. There is a definite temptation for Congress to provide a quick fix.

The government, not ready to let 12 members of the public make these decisions, has picked out a footnote in the opinion to argue their cause.

Relying on footnote 9, Deputy Attorney General James Comey tells all federal prosecutors that "Blakely does not apply to the Federal Sentencing Guidelines." He also instructs them what to argue should a court apply Blakely to a pending case.

One would have thought that the U.S. Department of Justice (DOJ) would have learned a lesson from the Supreme Court's decision in Hamdi and from the public's reaction to legal memos regarding torture. That is, that the DOJ should be a "minister of justice."

And if Blakely doesn't apply, will the government be first in line to ask Congress to amend statutes to ensure harsh sentences? Will the government weigh in on corrective legislation at the same time it argues in courts that a footnote in this case precludes courts from ignoring the federal sentencing guidelines?

Many will look to Congress to step in and answer all the questions arising from this case. And perhaps some legislation may be in order. But to move hastily, without study and careful examination, is not the answer. This
has been proven with both the USA Patriot Act and the Feeney amendments,legislation that has been met with harsh criticism.

Think first, enact later

What needs to happen now is a neutral study, one divorced from the routine functions of the existing U.S. Sentencing Commission, which has a stake in maintaining the guidelines. This could easily be accomplished by having an ad hoc committee established under the commission that will listen to the voices of prosecutors, defense counsel and judges who have experienced the sentencing-guidelines process.

It is important that such a study re-examine sentencing from a neutral and far-reaching stance, going beyond the usual examination of federal sentencing. For example, the ad hoc committee should look at the language used in state systems that offer options within the mandates set forth in the Blakely decision. Perhaps we could learn something from Kansas, which has a system that provides for fact-finding on sentencing enhancements. A wealth of resources are available, such as the American Law Institute's Sentencing Project, which has been studying sentencing for the past year.

We can also look at the American Bar Association's Kennedy Commission Report, especially its recommendations on repealing draconian mandatory minimums and for "providing guided discretion in sentencing." So too, the U.S. Sentencing Commission's research provides a clearinghouse of valuable
information that can assist an ad hoc committee in finding appropriate options that fall within the constitutional structure set forth in Blakely.

There is precedent for employing an ad hoc committee of the U.S. Sentencing Commission to study this issue: The Ad Hoc Advisory Group on the Organizational Sentencing Guidelines and the Native American Ad Hoc Advisory Group provided useful information that helped in fully understanding these sentencing issues. But these studies did not happen

In the interim, what do we do? The answer is easy: We existed without mandatory federal sentencing guidelines for 200 years prior to their enactment; we could easily exist a bit longer without them in order to study the landscape and make sure that we finally get sentencing right.

The guidelines are there to be "guidelines" and act as advice to judges in proceeding with sentencing.

Blakely is clear: Prove an enhancement to the fact-finder. Is it so difficult to let 12 people decide these issues? Making sure that guidelines are constitutionally sound is a goal that we should all strive for. Experience mandates that this is exactly the time to slow down and study all of the available options, including independent studies, the
work of an ad hoc committee and congressional proposals.

Barry Scheck is the president-elect of the National Association of Criminal Defense Lawyers and a professor at Yeshiva University's Cardozo School of Law. Ellen S. Podgor is on the board of directors of the National Association of Criminal Defense Lawyers and is a professor at Georgia State University College of Law.

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