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While finding common ground in an election year can be difficult, many of us in Congress can agree on at least one thing: The Supreme Court’s recent decision in Blakely v. Washington has caused a massive upheaval in the federal criminal justice system. Blakely held that any fact, other than a prior conviction, that increases the maximum penalty under a state statutory guidelines scheme must be presented to a jury and proved beyond a reasonable doubt. This is the case even if the defendant’s sentence falls below the statutory maximum sentence for that offense. Although Blakely dealt with state statutory guidelines and not federal guidelines promulgated by an independent agency in the judicial branch, Justice Sandra Day O’Connor in her dissent expressed concern that the court’s decision “casts constitutional doubt over [the federal guidelines system] and, in so doing, threatens an untold number of criminal judgments.” Subsequently, she candidly told the Ninth Circuit Judicial Conference that it “looks like a No. 10 earthquake.” I agree. AFTERSHOCKS It took less than a week for a federal district judge in my home state of Utah to declare the federal sentencing guidelines unconstitutional. Other federal courts quickly followed suit. In addition, the U.S. courts of appeals were split on whether the federal guidelines were constitutional in light of Blakely. In the weeks that followed, the shock waves from the Blakely decision continued in federal courts around the country as judges responded with a variety of approaches to sentencing. Some judges held that the federal sentencing guidelines system was unconstitutional, in its entirety, thereby giving themselves complete discretion to sentence defendants to any sentence between the statutory minimum and maximum penalties without consideration of any sentencing factors. Other judges held the guidelines unconstitutional but at the same time determined that judges nonetheless had the discretion to consider them in an advisory fashion. A third approach was to have the jury decide the relevant sentencing factors beyond a reasonable doubt — even though no federal rules authorize or govern the use of a jury in sentencing determinations. The fourth, and perhaps most troubling, approach found that since Blakely itself only bars courts from applying sentencing factors that increase a defendant’s sentence, courts are still free to apply sentencing factors that decrease a defendant’s sentence. Some courts thus considered all mitigating factors that would lower a sentence, while refusing to consider any aggravating factors that would increase it. Such a piecemeal application of federal sentencing guidelines is contrary to the Sentencing Reform Act of 1984, which created the U.S. Sentencing Commission and established the basis for the current federal guidelines system. As one of the framers of the act, I know that we intended the federal sentencing guidelines to be applied as an integrated and cohesive whole. The guidelines establish an interlocking system of calculations and calibrations that are part of a single sentencing equation. Alarmed by this immediate fallout from Blakely, I promptly held a Judiciary Committee hearing to examine the issue. Then, on July 21, approximately four weeks after the court’s decision, the Senate unanimously passed a resolution urging the Supreme Court to consider expedited review of the issue. All three branches of government agreed that the situation had reached a critical stage. The Department of Justice sought expedited review in a pair of cases, United States v. Booker and United States v. Fanfan, which question whether Blakely applies to the federal sentencing guidelines. The Supreme Court quickly granted certiorari to hear the matter on the first day of its 2004 term on Monday and ordered expedited briefing. Although five out of the seven federal appellate courts that have considered the issue to date have upheld the federal sentencing guidelines against Blakely challenges, the uncertainty remains strong. Federal prosecutors across the country are pleading sentencing factors in indictments — even in districts where the federal guidelines have been upheld — just in case the Supreme Court rules against them in Booker and Fanfan. Yet this would ultimately require juries to apply the sentencing guidelines. To many in the sentencing community, the thought of laypersons attempting to apply the complicated guidelines system — a task many attorneys find difficult — is simply unfathomable. A DECADE OF DELIBERATION Booker and Fanfan present the Supreme Court with the opportunity to clarify the confusion caused by Blakely. I hope it will keep in mind that the Sentencing Reform Act of 1984 was by no means a hastily enacted law. To the contrary, as my colleagues and I have explained in an amicus brief before the court, the act reflects more than a decade’s worth of reports, hearings, and deliberations on federal sentencing and is the product of an extraordinary coalescence of interbranch cooperation and bipartisan support in both houses of Congress. Prior to the 1984 act, federal sentencing was generally conducted pursuant to an indeterminate system. Congress prescribed a range of punishment that could be imposed for an individual convicted of a particular offense, but judges were free to impose a sentence anywhere within that statutory range based on the consideration of virtually any information that a court deemed relevant with respect to the specific characteristics of the defendant or the conduct in which he had engaged. This discretionary sentencing system produced astounding disparities among the sentences that were imposed on defendants with similar backgrounds convicted of the same offense. For example, an experiment undertaken by the Second Circuit in 1974 asked 50 judges to impose sentences based upon identical profiles of 20 hypothetical defendants. In one extortion case, the range of sentences varied from 20 years imprisonment and a $65,000 fine to three years imprisonment and no fine. Studies also indicated that the disparities that proliferated under this sentencing system not only were arbitrary, but also, in at least some cases, were based on the consideration of race, gender, and other illegitimate factors. The 1984 act represents Congress’s considered response to eliminate unwarranted sentencing disparities and to promote truth in sentencing. The law eliminated parole, which had allowed most prisoners to serve only one-third of their sentence. It also created the current sentencing guidelines system, which is a middle-ground approach between the failed system of indeterminate sentencing and the adoption of a rigid system of determinate sentencing, in which Congress would specify applicable sentences for federal offenses and judges would simply impose a sentence without any individualized consideration of the offender or his criminal conduct. ON THE HORIZON Since June, many inside and outside of Congress have been giving serious consideration to legislative solutions should the Supreme Court hold that Blakely applies to the federal sentencing guidelines. One proposal creates a presumption that a defendant will receive the statutory maximum penalty and turns all federal guidelines factors into mitigating factors to reduce that sentence. Others have suggested advisory sentencing guidelines or jury sentencing. A fourth proposal would set the top of every sentencing guideline range to equal the statutory maximum penalty. This way, the sentencing guidelines would continue to operate in their current fashion — all aggravating and mitigating factors would be decided by a judge by a preponderance of the evidence — but the guidelines calculations would determine only the minimum guideline sentence. I will continue to explore these and other legislative options that minimize unwarranted sentencing disparity and balance uniformity with appropriate judicial discretion. The best approach may be to work within the existing system to fix its problems, rather than to reject it wholesale — leaving the entire criminal justice system in a state of chaos. Sen. Orrin G. Hatch, R-Utah, is chairman of the Senate Judiciary Committee. He filed an amicus brief before the Supreme Court on this issue along with Sens. Edward M. Kennedy, D-Mass., and Dianne Feinstein, D-Calif. This piece originally ran in Recorder affiliate Legal Times.

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