Gearing up for the all-star event
I am already getting excited about the two all-star events planned for Tuesday. Of course, most of the country will be focused on the MLB All-Star game in Houston Tuesday night, but readers of this blog also know that an all-star line-up is scheduled to testify before the Senate Judiciary Committee about Blakely (background here). I’ve just received word that added to the roster for the hearing is William Mercer, US Attorney from Montana, who will serve as the DOJ witness. Mercer, also a contributor to FSR, is somewhat noted (some might say notorious) for his complaints about judicial abuse of downward departure authority. Prior to passage of the PROTECT Act and its Feeney Amendment, Mercer testified before the US Sentencing Commission about cases where judges “evaded” lawful guidelines by using their departure authority.
To add to the “pre-game” excitement, I can also pass along two letters addressed to the US Sentencing Commission, one from the Practitioners’ Advisory Group and the other from the Federal Defenders, concerning Tuesday’s hearing and recommendations to Congress.
UPDATE: Both of the letters to the Commission are fascinating (and short) reads, and each has distinctive themes. Here’s a key section from the Defenders letter:
[W]e urge the Commission to ask Congress to amend 18 U.S.C. § 3553 and for emergency authority to implement the holding in Blakely to bring the federal sentencing guidelines into compliance with the Fifth and Sixth Amendments. We believe that can best be done by modeling the system that the state of Kansas adopted when faced by a ruling from its Supreme Court, which invalidated its sentencing guidelines for the same reason that the Blakely Court struck down the Washington state sentencing guidelines. That is, to provide for a jury determination beyond a reasonable doubt for “all facts legally essential to punishment.” Id.
We have attached what we believe is a workable recommendation to Congress to amend 18 U.S.C. § 3553. It is modeled on the legislative response in the state of Kansas. The Commission would additionally need to amend the guidelines accordingly. That would require, among other things, elimination of cross-references, elimination of a number of the real-offense characteristics of relevant conduct, and changes to Chapter Six. We believe the Commission should undertake such guideline amendments with the help of an Ad Hoc Advisory Group.
And here’s a key passage from the Practitioners letter:
In light of the constitutional magnitude of the issues and their practical impact, we think the Commission should recommend that no immediate legislative action be taken. It took three years to consider and craft the federal sentencing guidelines and another fifteen years of practice and amendments to bring them to their current state. Little more than a week remains before Congress is scheduled to recess for the summer. This plainly is not enough time to carefully and thoughtfully design a constitutional federal sentencing system that preserves discretion and protects defendants’ due process rights. We do not believe that a viable solution can be crafted until the courts have first had a chance to work through the constitutional issues, and the potential options have been studied by an appropriate body with input from judges, defense lawyers, prosecutors and this Commission. While the courts are struggling with sentencing decisions in the short term, legislation will have only prospective impact. We fear that a short term solution, crafted in haste, may set the terms of the future. Therefore, we counsel caution and the time for full deliberation.
We are concerned that some of the proposals for interim legislative responses that have been proposed may not comport with the spirit or the letter of the fundamental Sixth Amendment right to a jury finding beyond a reasonable doubt granted in Blakely.