[Congressional Record Volume 150, Number 102 (Wednesday, July 21, 2004)]
[Senate]
[Pages S8572-S8574]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXPEDITIOUS SUPREME COURT ACTION IN BLAKELY V. WASHINGTON
Mr. FRIST. I ask unanimous consent the Senate proceed to the
immediate consideration of S. Con. Res. 130.
The PRESIDING OFFICER. The clerk will report the concurrent
resolution by title.
The legislative clerk read as follows:
A concurrent resolution (S. Con. Res. 130) expressing the
sense of Congress that the Supreme Court of the United States
should act expeditiously to resolve the confusion and
inconsistency in the Federal criminal justice system caused
by its decision in Blakely v. Washington, and for other
purposes.
There being no objection, the Senate proceeded to consider the
concurrent resolution.
Mr. HATCH. Madam President, S. Con. Res. 130 expresses the sense of
Congress that the Supreme Court should expedite consideration of the
applicability of Blakely v. United States to the Federal Sentencing
Guidelines.
As one of the original cosponsors of the Sentencing Reform Act of
1984, which created the United States Sentencing Commission, and a
proponent of reducing sentencing disparity across the nation, I have a
strong interest in preserving the integrity of the Federal guidelines
against constitutional attack. Congress enacted the Sentencing Reform
Act to reduce unwarranted disparity in Federal sentencing, including
racial, geographical, and other unfair sentencing disparities by
establishing standardized sentencing rules while leaving judges enough
discretion to impose just sentences in appropriate cases.
As many here may already know, criminal defendants are routinely
sentenced by judges who decide sentencing facts based upon a
preponderance of the evidence standard. This has all changed in recent
weeks. On June 24, 2004, in Blakely v. Washington, the Supreme Court
held that any fact that increases the maximum penalty under a State
statutory sentencing guidelines scheme must be presented to a jury and
proved beyond a reasonable doubt even though the defendant's sentence
falls below the statutory maximum sentence.
Although the Supreme Court explicitly stated in a footnote that ``The
Federal Guidelines are not before us, and we express no opinion on
them,'' it also characterized the government's amicus brief as
questioning whether differences between the State and Federal
sentencing schemes are constitutionally significant. The ambiguity
apparent in Blakely and the strong suggestions by the dissent that it
will apply to the Federal sentencing guidelines, has understandably
created angst throughout the Federal justice system.
In just 2\1/2\ weeks after the Supreme Court's decision, we already
had a split among the Federal circuit courts of appeal. In addition, at
least two dozen lower Federal courts--and probably many more--have
ruled the Federal Sentencing Guidelines unconstitutional. Some judges
disregard the Federal sentencing guidelines in their entirety. Other
judges apply mitigating sentencing factors but disregard any relevant
aggravating factors. Still other judges are convening juries to decide
some of these sentencing facts.
In fact, as I learned when the Judiciary Committee held a hearing on
this very issue just last week, in my home State of Utah, the district
judges adopted four different approaches to sentencing defendants after
Blakely.
Let me briefly describe a couple of examples of the havoc caused by
this Blakely decision. I'm sure we all recall Dwight Watson, the man
who sat in a tractor last year outside the U.S. Capitol for 47 hours
and threatened to blow up the area with organophosphate bombs. The day
before the Blakely opinion, Mr. Watson was sentenced to a 6-year prison
sentence. Less than a week after the Supreme Court's opinion, he was
resentenced to 16 months, which was essentially time served. He is now
a free man.
A defendant in West Virginia had an offense level that was off the
sentencing charts. Although he would have been subject to a life
sentence under the guidelines, the statutory maximum penalty was 20
years. He was given a 20-year sentence three days before Blakely was
decided. A week later, his sentence was drastically reduced to 12
months. The judge did not rely on any relevant conduct or any
sentencing enhancements in calculating the defendant's sentence. In
other words, he only applied a portion of the sentencing guidelines--
those that he thought remained valid after Blakely.
The concurrent resolution I introduce today urges the Supreme Court
to act expeditiously to resolve whether the Federal sentencing
guidelines can be constitutionally applied in light of Blakely v.
Washington. While I wish we could have done more, unfortunately, we
were unable to do so in such a short period of time.
As we go forward, I believe we should adopt legislation that would
render the Federal sentencing guidelines constitutional regardless of
whether Blakely applies. Unfortunately, while I have worked diligently
with my colleagues on both sides of the aisle and in both Houses, we
simply just ran out of time. While I hope that the Supreme Court will
find application of the Federal sentencing guidelines constitutional
under the 6th Amendment, I will continue to work with my colleagues
over the next several months in preparation of a contingency plan to
ensure that regardless of what the Supreme Court decides, that we will
be able to preserve a system that promotes uniformity and reduces
sentencing disparity across this country.
Mr. LEAHY. Mr. President, the Supreme Court's decision last month in
Blakely v. Washington has raised significant concerns about the
validity of the Federal sentencing guidelines. Blakely held that
sentencing procedures used by the State of Washington violated the
defendant's constitutional right to a jury trial because they allowed
the judge to impose an enhanced sentence based on facts that were
neither found by a jury nor admitted by the defendant.
Within days of this decision, a split developed among the Federal
district and circuit courts regarding the applicability of Blakely to
the Federal Sentencing Guidelines, and one circuit court invoked a
rarely used procedural mechanism to certify the question to the Supreme
Court. Lower Federal courts continue to reach inconsistent positions on
Blakely issues on virtually a daily basis. By all accounts, the
confusion and uncertainty is frustrating the orderly administration of
justice in courts across the country.
[[Page S8573]]
Two and one-half weeks after the Court issued its Blakely decision,
the Senate Judiciary Committee convened a hearing to consider the
implications of the decision for the Federal criminal justice system.
As witness after witness described the disarray in the lower Federal
courts, it became increasingly clear that the not-hypothetical
application of Blakely to the Federal Sentencing Guidelines is
threatening to undo 20 years of sentencing reform.
Twenty years after enactment of the Sentencing Reform Act of 1984, we
must remind ourselves about the core values and principles that
accounted for the bipartisan popularity of the original Federal
Guidelines concept. The 1984 act was written and enacted against a
history of racial, geographical, and other unfair disparities in
sentencing. Congress sought to narrow these disparities while leaving
judges enough discretion to do justice in the particular circumstances
of each individual case. The task of harmonizing sentencing policies
was deliberately placed in the hands of an independent, expert
Sentencing Commission.
The Guidelines as originally conceived were about fairness,
consistency, predictability, reasoned discretion, and minimizing the
role of congressional politics and the ideology of the individual judge
in sentencing. Blakely threatens a return to the bad old days of fully
indeterminate sentencing when improper factors such as race, geography
and the predilections of the sentencing judge could drastically affect
the sentence. While I favor Federal judges exercising their discretion
in pursuit of individual justice in individual cases, I do not want to
see a return to the bad old days.
It may be that the Blakely decision was occasioned in part by recent
tinkering with the Sentencing Reform Act that went too far. In recent
years, Congress has seriously undermined the basic structure and
fairness of the Federal Guidelines system through posturing and
ideology. There has been a flood of legislation establishing mandatory
minimum sentences for an ever-increasing number of offenses, determined
by politics rather than any systemic analysis of the relative
seriousness of different crimes. There has been ever-increasing
pressure on the Sentencing Commission and on individual district court
judges to increase Guidelines sentences. The culmination of these
unfortunate trends was the so-called Feeney Amendment to the PROTECT
Act, in which this Congress cut the Commission out altogether and
rewrote large sections of the Guidelines manual, including commentary,
and in which Congress also provided for a judicial ``black list'' to
intimidate judges whose sentences were insufficiently draconian to suit
the current Justice Department.
The Feeney Amendment was a direct assault on judicial independence.
It was forced through the Congress with virtually no debate and without
meaningful input from judges or practitioners. That process was
particularly unfortunate given that the Republican majority's
justification for the Feeney Amendment--a supposed ``crisis'' of
downward departures--was unfounded. In fact, downward departure rates
were well below the range contemplated by Congress when it authorized
the Federal Sentencing Guidelines, except for departures requested by
the Government itself. But having a false factual predicate for forcing
significantly flawed congressional action has become all too familiar
during the last few years.
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. 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.
These are issues that need to be examined in the future, in a
thoughtful and deliberative fashion. The Sentencing Reform Act was the
product of many years of work by members on both sides of the aisle.
The current Sentencing Guidelines reflect more than a decade of work by
the Sentencing Commission. If the Blakely decision ultimately requires
some modification of our Federal sentencing system, we must proceed
with extreme care. The last thing that any of us want is to risk making
an already chaotic situation even worse by enacting ill-considered
legislation that is itself subject to constitutional attack.
The Department of Justice, the Sentencing Commission, and other
experts who testified before the Judiciary Committee have urged
Congress not to act precipitously. I agree that corrective legislation
is not immediately necessary and could be counter-productive, provided
that the Supreme Court expeditiously clarifies the scope of its Blakely
decision.
For these reasons, I am pleased to join Senator Hatch and other
Judiciary Committee members in introducing a resolution regarding the
Blakely decision. The words of the resolution are clear, unambiguous
and unassailable: The Supreme Court of the United States should act
expeditiously to resolve the current confusion and inconsistency in the
Federal criminal justice system by promptly considering and ruling on
the constitutionality of the Federal Sentencing Guidelines. Congress
should take up and pass this resolution without delay.
Mr. FRIST. Madam President, I ask unanimous consent the resolution be
agreed to, the preamble be agreed to, the motion to reconsider be laid
upon the table, and any statements related to this matter be printed in
the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
The resolution (S. Con. Res. 130) was agreed to.
The preamble was agreed to.
The concurrent resolution, with its preamble, reads as follows:
S. Con. Res. 130
Whereas Congress enacted the Sentencing Reform Act of 1984
to provide certainty and fairness in sentencing, avoid
unwarranted disparities among defendants with similar records
found guilty of similar offenses, and maintain sufficient
flexibility to permit individualized sentences when
warranted;
Whereas Congress established the United States Sentencing
Commission as an independent commission in the Judicial
branch of the United States to establish sentencing policies
and practices for the Federal criminal justice system that
meet the purposes of sentencing and the core goals of the
Sentencing Reform Act;
Whereas Congress has prescribed both statutory minimum and
statutory maximum penalties for certain offenses and the
Sentencing Reform Act authorizes the Sentencing Commission to
promulgate guidelines and establish sentencing ranges for the
use of a sentencing court in determining a sentence within
the statutory minimum and maximum penalties prescribed by
Congress;
Whereas the statutory maximum penalty is the maximum
penalty provided by the statute defining the offense of
conviction, including any applicable statutory enhancements,
and not the upper end of the guideline sentencing range
promulgated by the Sentencing Commission and determined to be
applicable to a particular defendant;
Whereas both Congress and the Sentencing Commission
intended the Federal Sentencing Guidelines to be applied as a
cohesive and integrated whole, and not in a piecemeal
fashion;
Whereas in Mistretta v. United States, 488 U.S. 361 (1989),
the Supreme Court of the United States upheld the
constitutionality of the Sentencing Reform Act and the
Federal Sentencing Guidelines against separation-of-powers
and non-delegation challenges;
Whereas in Blakely v. Washington, 124 S. Ct. 2531 (2004),
the Supreme Court held that the sentencing guidelines of the
State of Washington violated a defendant's Sixth Amendment
right to trial by jury;
Whereas despite Mistretta and numerous other Supreme Court
opinions over the past 15 years affirming the
constitutionality of various aspects of the Guidelines, the
Blakely decision has raised concern about the continued
constitutionality of the Federal Sentencing Guidelines;
Whereas the Blakely decision has created substantial
confusion and uncertainty in the Federal criminal justice
system;
Whereas the lower Federal courts have reached inconsistent
positions on the applicability of Blakely to the Federal
Sentencing Guidelines;
Whereas there is a split among the circuit courts of appeal
as to the applicability of Blakely to the Federal Sentencing
Guidelines, and the Second Circuit Court of Appeals has
certified the question to the Supreme Court;
Whereas the orderly administration of justice in pending
and resolved trials, sentencings and plea negotiations has
been affected by the uncertainty surrounding the
applicability of the Blakely decision to the Federal
Sentencing Guidelines;
Whereas the current confusion in the lower Federal courts
has and will continue to produce results that disserve the
core principles underlying the Sentencing Reform Act;
[[Page S8574]]
Whereas two and one-half weeks after the Supreme Court
issued its decision in Blakely, the Senate Judiciary
Committee convened a hearing to consider the implications of
the decision for the Federal criminal justice system; and
Whereas the Department of Justice, the Sentencing
Commission, and others advised the Committee that corrective
legislation was not necessary at this time, with the hope
that the Supreme Court would clarify the applicability of its
Blakely decision to the Federal Sentencing Guidelines in an
expeditious manner: Now, therefore, be it
Resolved by the Senate (the House of Representatives
concurring), That it is the sense of Congress that the
Supreme Court of the United States should act expeditiously
to resolve the current confusion and inconsistency in the
Federal criminal justice system by promptly considering and
ruling on the constitutionality of the Federal Sentencing
Guidelines.
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