[Congressional Record (Bound Edition), Volume 150 (2004), Part 12]
[Senate]
[Pages 16820-16822]
[From the U.S. 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,

[[Page 16821]]

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.
  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;

[[Page 16822]]

       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;
       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.

                          ____________________