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Lawmakers are being asked to step in to fix the mess created by a Supreme Court decision that may have scuttled sentencing guidelines for federal crimes. The Court’s June 24 ruling in Blakely v. Washington invoked the Sixth Amendment right to a jury trial in striking down a Washington state scheme that allowed judges to determine whether a defendant’s sentence should be increased. Although the case addressed only one state’s sentencing plan, federal judges around the country have questioned the continuing validity of the U.S. Sentencing Guidelines — and the U.S. Courts of Appeals for the 6th and 7th Circuits have already invalidated them. “There is a growing consensus that Blakely will apply to the federal guidelines, given the lack of a meaningful distinction between the federal guidelines and the Washington state sentencing system invalidated in Blakely,” says Adam Rosman, counsel at D.C.’s Zuckerman Spaeder. “The dissenting opinions in Blakely predict this result, and several federal judges have already reached this conclusion.” Since the decision, sentencing experts have pushed a series of legislative proposals that would preserve the guidelines. Among them: Drastically increasing the maximum sentences for all federal crimes, making the guidelines optional rather than mandatory, and giving juries a much bigger say on sentencing. But some warn that doing nothing — and letting the Supreme Court take up the sentencing issue again — may be the best medicine. Congress, they argue, may only make matters worse. “There is a sense that Congress should not act at all in the short term,” says Ronald Weich, a former special counsel to the U.S. Sentencing Commission and former Democratic Senate Judiciary Committee aide. “Perhaps Congress should not add to the confusion. There is every reason to believe that the Supreme Court will offer a definitive answer in six months.” In Blakely, the Supreme Court ruled that since the judge, not the jury, made a finding boosting a defendant’s sentence beyond a guideline length, the defendant’s right to a jury trial had been violated. The federal sentencing scheme works pretty much the same way as the one in Washington state, with the basic facts of a crime dictating an initial “guideline range” and a judge having the power to add months or years to the sentence based on particular aspects of the crime, such as the use of a gun. At a Senate Judiciary Committee hearing on July 13, witnesses aired some of the possible ways for fixing the federal guidelines after the Blakely bombshell. The senators present, including Chairman Orrin Hatch (R-Utah) and ranking minority member Patrick Leahy (D-Vt.), did not endorse specific legislative proposals and used the hearing mostly to hear from experts and study the thorny issue. Hatch said that although he had no legislative language, he was looking at a proposal similar to that suggested at the hearing by professor Frank Bowman of Indiana University Law School that would increase the maximum of the guideline range for all federal crimes. Leahy said, “ Blakely raises real practical problems that unfortunately threaten to clog our federal courts with procedural and constitutional nightmares. But we can use it as a springboard to discuss federal sentencing practices thoughtfully.” Weich, a Zuckerman Spaeder partner who serves as counsel to the Leadership Conference on Civil Rights and to the Constitution Project, testified that in the short term, Congress could simply suspend the provision of law that makes the guidelines mandatory, thus creating a system of advisory guidelines that would not run afoul of Blakely. The Justice Department, represented at the hearing by U.S. Attorney William Mercer of Montana, also urged the committee to be “careful and deliberate” in considering Blakely legislation. Mercer emphasized that the department believes the guidelines can stand, even after Blakely. The Practitioners’ Advisory Group, which represents the views of criminal defense lawyers before the U.S. Sentencing Commission, said a set of advisory guidelines, “with a sunset and study provision,” would be appropriate. The advisory group also suggested that Congress take a look at what it called the “Kansas solution.” When the Kansas Supreme Court struck down that state’s sentencing law in 2001 in a decision similar to Blakely, the state legislature responded by requiring that juries make formal findings in support of all sentencing increases above the guideline range. Justice Antonin Scalia, in his 5-4 majority opinion in Blakely, pointed to the Kansas experience in an approving manner. The Federal Public Defenders, in a July 8 letter to Sens. Leahy and Edward Kennedy (D-Mass.), also endorsed this strategy. “I can tell you that the sky has not fallen in Kansas,” says Jack King, public affairs director of the National Association of Criminal Defense Lawyers. But Bowman, the Indiana sentencing expert who testified at the Judiciary Committee hearing, criticized the Kansas plan as unworkable. The plan “would not be easy to implement and would indeed require immediate massive rethinking of interlocking sets of sentencing, trial, evidence, and appellate rules,” Bowman wrote in his testimony. Instead, Bowman proposed a novel fix to the Judiciary Committee: Simply have Congress increase the top of every guideline range to the maximum penalty provided by statute. This, Bowman said, would avoid all Blakely problems because a judge would never be placed in the position of pushing a sentence above the guideline range. Bowman gives this example. The simple crime of fraud now has a “base offense level” of 6 under the guidelines, generating a guideline range of zero to six months’ incarceration. Before Blakely, a judge might have found aggravating factors that pushed the offense level to 19, with a range of 30 to 37 months. But this finding by a judge would be highly questionable after Blakely. Bowman’s solution: Since the maximum sentence for any fraud is 120 months, change the law to provide that simple fraud has a guideline range of zero to 120 months — and do the same kind of thing for all federal crimes. “Under Blakely, the thing you can’t go above is the [guideline] maximum,” Bowman says. “So this change seems to conform to the weird rules of the alternative universe that Blakely puts us in.” Bowman is not concerned that judges will find carte blanche to hand down draconian sentences under his proposal. “It’s very unlikely,” he says, “that judges will do anything other than what they are doing now.” King of the NACDL rejects this idea. “That would completely defeat the idea of the federal Sentencing Reform Act of 1984 [that established the guidelines] and would return everything to the judge’s discretion,” he says.

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