Editorial: We Were Hijacked

By Mujaddid R. Muhammad, prisoner of the drug war

While considering how the judicial system is robbing us of the windfall brought about by Blakely, I've been doing creative research into other avenues now open because of this constitutional recognition. I was reading over "Basics of Blakely v. Washington" in the winter 2004/2005 edition of Razor Wire, a piece so on point as to the impact and effect of Blakely. But the bottom line is, we were simply highjacked. Luckily, though, there are more ways than one to skin a cat.

"Every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment. The Framers would not have thought it too much to demand that, before depriving a man of three or more years of his liberty, the state should suffer the modest inconvenience of submitting its accusation to the unanimous suffrage of twelve of his equals and neighbors." (Blakely 124 S. Ct. at 2543).

Almost all federal and state courts in the country continue to hold that the Sixth Amendment right reinforced in Blakely/Booker principles is not retroactively applicable to persons whose cases became final prior to each of these decision's announcement. It's now obvious that those individuals who have already served well beyond the constitutional sentence they should have received will still find no logic or relief in the Supreme Court's proclaimed recognition that we were, pre-Booker and to this day, entitled to Sixth Amendment protections at sentencing.

In my own case, I was given a 32-year sentence on conviction in a low-level drug conspiracy for which I've already served 15 years. However, based upon the findings and rulings in the Blakely/Booker series, my sentence is nearly 24 years greater than what I should have received.

The crux of the issue is that hundreds of thousands of prisoners held captive in US state and federal prisons just like me, men and women, are serving unconstitutionally imposed sentences, and can't find relief through the judiciary solely because of when their sentences became final. Conversely, there are others who faced the same dilemma, except their sentences were not final and some are going back to court and getting reduced sentences in increments of 5, 10, 15, 20 years and, for a few, immediate release! There is definitely something wrong with this picture, which brings me to my creative argument.

Fortunately, in this country when it comes to upholding the Constitution of the United States, this responsibility belongs not only to the judiciary, but the legislative and executive branch, too. For example, in the American Convention on Human Rights, signed by the U.S. on June 1, 1977, it provides in Article 9:

"A heavier penalty shall not be imposed than the one that was applicable at the time the criminal offense was committed. If subsequent to the commission of the offense the law provides for the imposition of a lighter punishment, the guilty person shall benefit therefrom."

Here we have the United States government as a signatory of a Covenant that speaks explicitly to the meaning and applicability of Blakely/Booker to individuals whose constitutional rights were violated at sentencing. What's more, a 1994 report of the United States to the UN on the implementation of the Covenant in U.S. domestic law states that "the United States will implement its obligations under the Covenant by appropriate legislative, executive and judicial means, federal or state."

I think it's plainly obvious that the Blakely/Booker ruling is one that "provides for the imposition of a lighter punishment." If, because of retroactivity doctrines or what have you, this obligation cannot be fulfilled through the judicial branch, it seems reasonable that it should automatically fall to the legislative and/or executive branch. Yet, this must not be a discretionary act guided by whim and caprice, but as a mandatory duty and obligation, impelled by the oath of office for one, but also the mandatory language, i.e., "shall", that the Covenant uses.

In "Justice For All: Analyzing Blakely Retroactivity and Ensuring Just Sentences in Pre-Blakely Convictions, 66 OHIO St. L.J. -- (2005)," David E. Johnson points out that because the president and members of Congress swear to defend and uphold the Constitution, they should be troubled and poised to act when it is known that the Constitution has not been upheld for hundreds of thousands of prisoners now serving unconstitutional sentences. This is a must read!

I think what I have outlined regarding the 1977 Covenant that the U.S. government signed should serve as guide for what Johnson has suggested in his proposals. What I'm asking is how can these legal remedies become incorporated into what's already being done?

It would be an absolute travesty to allow the impact of Blakely/Booker to just fade into oblivion, while hundreds of thousands still suffer under the brunt of overkill sentences that have been subsequently declared unconstitutional.